PURENDRA MUNDA Vs. PRADHAN SINGH MUNDA

JUDGEMENT

(1.) IN this writ application under Article 227 of the Constitution of India the defendants -petitioners have challenged the order dated 21.9.2005 passed by Sub -Judge -I, Khunti in Partition Suit No. 20 of 1992 whereby the application filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint has been allowed.

(2.) THE case of the Plaintiff -respondent No. 1, in brief, is as under: Plaintiff -respondent No. 1 filed Partition Suit No. 20 of 1992 in the Court of Munsif, Khunti against the petitioners and proforma Respondents for decree of partition in respect of their share in the suit property. Defendants -petitioners appeared in the suit and filed written statement and pleaded that there is no unity of title and possession between the parties and the genealogical table given in the plaint is also not correct. It was pleaded that plaintiff and the proforma Respondents are not entitled to any relief. The suit was eventually transferred to the Court of Sub -Judge, Khunti on the ground of pecuniary jurisdiction. The suit was decreed and preliminary decree was prepared on 20.3.1997. Thereafter, proceeding for preparation of final decree was initiated and Pleader Commissioner was appointed, who submitted his report. It is stated that while hearing on the Pleader Commissioner 's report was going on, plaintiff filed application on 8.1.2004 under Sec.152 of the C.P.C for amendment of the judgment to the effect that defendant Nos. 1 to 5 (petitioners) along with proforma defendant Nos. 6 and 7 together have 1/4th share in the suit property. The Court below after hearing the parties rejected the petition by order dated 9.8.2004. Plaintiff -respondent No. 1 then filed application on 31.5.2005 under Order VI Rule 17 read with Sec.151 of the Code of Civil Procedure for amendment of the plaint stating inter alia that at the time of drafting of the plaint, a mistake occurred in the cause title of the plaint and therefore, plaintiff proposed to declare defendant 10, 11, 12 to 15 as proforma defendants and the rest of the proforma defendants be declared as defendants. The said amendment was opposed by defendant/petitioners by filing rejoinder. The Court below after hearing the parties allowed the amendment petition by passing the impugned order. Hence, this application.

(3.) THE plaintiff -respondent No. 1 filed the aforementioned Partition Suit No. 20 of 1992 against the petitioners -defendant Nos. 1 to 5 and also against the proforma defendants -respondents No. 2 to 15. The plaintiff 'scase was that his share along with proforma defendants is half and the remaining half share belongs to the defendants. In the said suit, a preliminary decree was passed wherein it was held that the plaintiff along with proforma defendants have half share in the suit property. During preparation of the final decree, plaintiff filed a petition under Sec.152 of the C.P. C. for amending the judgment claiming that defendant Nos. 1 to 5 along with proforma defendant Nos. 6 and 7 together have 1/4th share in the property. The said application was opposed by the petitioners and the Court below rejected the said petition by order dated 9.8.2004.