Dismissed

Ram Lakhan Lohar Alias Ram Lakhan Lohra v. Mantu Turi

Jharkhand HC22 Jul 2019WPC/2862/2019

Case brief

AI extract

What is this about?

This writ petition challenged orders rejecting an amendment petition to correct a faliing mistake and an application for withdrawal of suit with liberty to file fresh suit. The court affirmed the trial court's discretion in rejecting both applications based on admissions and lack of sufficient grounds.

What did the court decide?

The writ petition was dismissed; no interference with the impugned orders of the trial court.

Ram Lakhan Lohar Alias Ram Lakhan Lohra Vs Mantu Turi — Property and Title | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.2862 of 2019

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Ram Lakhan Lohar @ Ram Lakhan Lohra, aged about 49 Years

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Deepak Lohar @ Deepak Lohra, aged about 30 Years

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Birbal Lohar @ Birbal Lohra, aged about 42 Years

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Mahabir Lohar @ Mahabir Lohra, aged about 52 Years S. No.1 to 4 are sons of Late Bahuran Lohar.

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Manful Lohar @ Manful Lohra, aged about 36 Years, Son of Late Bipta Lohar. All residents of Village-Bhusarh, P.O. & P.S.-Chandwa, District- Latehar …… Petitioners/Plaintiffs

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Versus

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Mantu Turi 2. Latu Turi 3. Luraka Turi S/o Late Jerka Turi 4. Najru Turi S/o Late Chandru Turi All residents of Village-Bhusarh, P.O. & P.S. Chandwa, District Latehar. …… Respondents/Defendants

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State of Jharkhand through the Deputy Commissioner, Latehar, P.O., P.S. & District- Latehar.

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The Deputy Commissioner, Latehar, P.O., P.S. & District- Latehar.

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The Settlement Officer, Palamau, P.O. & P.S.- Daltonganj, DistrictPalamau.

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The Deputy Collector Land Reforms, Latehar, P.O., P.S. & DistrictLatehar. …….. Performa Respondents/Performa Defendants

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Murti Mosamat W/o Bipta Lohar 10. Nankanha Lohar 11. Bhatwa Lohar

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Nand Kishore Lohar

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S. No.10 to 12 are sons of Late Maku Lohar

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Bigan Lohar

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Sugan Lohar

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S.No.13 & 14 are sons of Late Lundia Lohar

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Sushila Devi W/o Bitan Lohar

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Suresh Kumar

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Chhotu Lohar

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S. No.16&17 are sons of Late Bitan Lohar

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Pratima Kumari

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Rima Kumari

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Sima Kumari

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Dhanvanti Kumari 22. Sona Kumari

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S.No.18 to 22 are daughters of Late Bitan Lohar.

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S. No.9 to 22 are residents of Village-Bhusarh, P.O. & P.S.- Chandwa, District- Latehar. ….. Performa Respondents/Plaintiffs

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioners : Mr. D.K. Prasad, Advocate : Mr. Jitesh Kumar, Advocate For the Respondent-State : Mr. Vineet Prakash, A.C. to S.C.(L&C)-I ----------------------------

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03 / Dated 22^nd July, 2019

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1. This writ petition is under Article 227 of the Constitution of India whereby and whereunder order dated 27.02.2019 as also the order dated 22.04.2019 passed in Title Suit No.36 of 2011 are under challenge. by order dated 27.02.2019 petition filed under Order VI Rule 17 of the Code of Civil Procedure, has been rejected, vide order dated 22.04.2019 petition filed under order XXIII Rule 1 has been rejected.

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2. The brief facts of the case and as per pleading made by the petitioner in the writ petition is that a Title Suit being Title Suit No. 36 of 2011 has been instituted for seeking therein following reliefs;

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(i) For that it be declared that the plaintiffs have absolute right, title upon suit land.

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(ii) For that it be declared that the plaintiffs are bonafide Raiyats of suit land.

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(iii) For that it be declared that the survey authority have wrongly prepared new survey Khatiyan of New Khata No.10 in the name of Chandru Turi.

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(iv) For that it be declared that the learned D.C.L.R., Latehar has wrongly passed order for cancellation of demand which does not affect right, title and possession of plaintiffs.

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3. The case of the petitioners/plaintiffs herein is that the suit land relates to C.S. Khata No.37, Plot No.184, 185, 186, 187B, 188, 212, 224, 238, 276 Total Area 10.51 Acres of Village Bhusarh recorded in the name of Kaila Turi, Udja Turi and Budhja Turi all sons of Kishun Turi. The recorded tenants were not able to retain property hence they abandoned it in the year 1932 and then the Ex-landlord took the said land in his possession and began to cultivate upon it. Later on he settled an area of 10.51 Acres to Dukhan Lohar, Maku Lohar, Lundia Lohar, Dharam Lohar, Bahuran Lohar, through a customary hukumnama and issued rent receipts having taken rent and Najarana Rs.40/- in the Year 1937 which has been mentioned in Schedule-A of the plaint and thereafter they began to exercise their peaceful right, title and possession upon settled land and began to cultivate crops upon it.

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Further case of the petitioners/plaintiffs is that at the time

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of vesting of Zamabandi the Ex-Landlord furnished return in Compensation Case No.25 of 1960 and shown Maku Lohar and others to be Raiyats of 10.51 Acres of land under Khata No.37 of VillageBusarh and after vesting they continued to pay the rent to the State of Bihar.

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Further the petitioners/plaintiffs case is that during Revisional survey operation new Khata No.10 New Plot No.285, 286, 287, 288, 289, 290, 291, 328, 329, 336, 350, 410, 414, 475 Area 10.71 Acres has been made for settled land of plaintiffs. The survey authorities have visited spot and found possession of plaintiffs upon their land but by mistake they have inserted name of Chandru Turi in Column No.2 of Revisional Survey Khatiyan as to be raiyati of the said land which could not be known by the plaintiffs and due to this act of Defendant No.1 Mantu Turi they filed a petition for cancellation of demand running in the name of plaintiffs which was created in arbitrary manner but the demand was cancelled and opened in the name of Mantu Turi, hence the suit has been filed.

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The suit when reached to the stage of final hearing and when he was preparing for argument then it came to be known by the counsel of the plaintiffs that instead of the Year 1950 the year 1937 has been written in the 8^th Line of 2^nd Para of plaint which was bonafide mistake in translation/calculation of FASLI YEAR to English Year hence an application under Order VI Rule 17 C.P.C. was filed for amendment.

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The defendant has filed rejoinder to the amendment petition and the court after hearing the parties, has rejected the said amendment on 27.02.2019.

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After rejection of the amendment application, plaintiff has filed an application under Order XXIII Rule 1 of the C.P.C. with a prayer that due to technical mistake they want to withdraw their suit with a liberty to file a fresh suit on same cause of action.

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The defendants have filed rejoinder and after hearing the parties the petition filed under Order XXIII Rule 1 of the C.P.C., has been rejected.

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Both the orders are under challenged in this writ petition inter alia on the ground that if the petition filed under Order VI Rule 17 of the C.P.C. would be allowed, the nature of suit will not be changed since only correction has been sought which pertains to arithmetical calculation and therefore, the ground which has been recorded in the impugned order for rejecting the aforesaid petition i.e. the nature of suit would change, cannot be said to be a valid and cogent ground.

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So far as the rejection of petition filed under Order XXIII Rule 1 of the C.P.C. is concerned, the grounds inter alia has been taken that the provision contained therein, cast duty upon the trial court to allow withdrawal of the suit with a liberty to file fresh when there is valid reason, therefore, the petition under Order VI Rule 17 has not been allowed, therefore, it was incumbent upon the trial court to allow the petitioner to withdraw the suit with liberty to file fresh one but having not done so, the trial court has not acted properly.

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4. Having heard the learned counsel for the parties and on appreciation of their rival submissions advanced on behalf of the learned counsel for the petitioner as also after going across the pleading made in the writ petition and the finding recorded in the impugned order this Court first deem it fit and proper to deal with the applicable law before going to the merit of the order passed under Order VI Rule 17.

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It is not in dispute that the petition under Order VI Rule 17 is to be considered by the trial court either filed by plaintiffs or by defendants for making amendment in the plaint or the written statement which is being referred hereunder as:-

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“[17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

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Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.]”

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It is evident from the provisions as contained under Order VI Rule 17 CPC that conditions for allowing the amendment is (1) when the nature of the Suit is not changed, (2) without the amendment would

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result in introducing new cause of action and intends to prejudice other party (3) when the law of limitation, if fresh suit, an amendment in plaint would be defeated, barred that as a general rule it would be rejected but to avoid multiplicity it can be allowed, reference in this regard may be made to judgment rendered in the case of Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr., reported in (2008) 14 SCC 364 , in the case of Revajeetu Builder and Developers vs. Narayanaswamy and Sons and Ors., reported in (2009) 10 SCC 84 .

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The scope of allowing the amendment under the aforesaid provision has been changed after the amendment brought in the Code of Civil Procedure w.e.f. 01.07.2002 wherein it has been enacted by adding provision namely no application for amendment of the pleading shall be allowed after the trial has been commenced unless the Court comes to conclusion that in spite of due diligence the party could not have raised the matter, reference in this regard be made judgment rendered by the Hon’ble Supreme Court in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand reported in (2008) 5 SCC 117 , in the case of Sumesh Singh Vs. Phoolan Devi & Ors. reported in (2009) 12 SCC 689 and in the case of Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors. reported in (2012) 11 SCC 341.

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It is settled position of law that when amendment introduces a claim on a new cause of action, the amendment shall be effected from the date of amendment and it will relates back to the date of institution of the original suit, this has been considered by the Hon’ble Apex Court in the case of Siddalingamma and Anr. vs. Mamtha Shenoy, reported in (2001) 8 SCC 561.

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It is also settled proposition of law that if any amendment is to be dissolute if afresh suit on the amended claims would be barred by limitation on the date of application, reference in this regard may be made to the judgment rendered in the case of L.J.Leach and Co. Ltd., & Anr. Vs. Messrs. Jairdine Skinner and Co Respondents. reported in (1957) SCR 438, in the case of T.N. Alloy Foundary Co. Ltd. Vs. T.N. Electricity Board & Ors. reported in (2004) 3 SCC

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392, Ashutosh Chaturvedi Vs. Prano Devi Alias Parani Devi & Ors. reported in (2008) 15 SCC 610, and in the case of Ravajeetu Builders and Developers Vs. Narayanaswamy and Sons & Ors. reported in (2009) 10 SCC 84.

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5. In the light of the aforesaid provision of law this Court has appreciated the finding recorded by the trial court in the order dated 27.02.2019 wherefrom it is evident that a petition has been filed by the plaintiff under Order VI Rule 17 of the Code of Civil Procedure at the stage of argument seeking leave of the Court to allow the plaintiff to mention Year 1950 in place of Year 1937 in the 8^th line of 2^nd Para of the plaint.

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6. This Court in order to appreciate the legality and propriety of the order impugned, has gone across the 2^nd Para of the plaint wherein the aforesaid amendment has been sought for which reads hereunder as:-

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“That the recorded tenants were not able to retain

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property and they abandoned it in the year 1932 and after then the Ex-land lord took abandoned land in his sir possession and began to cultivate upon it later on he settled an area of 10.51 acres land to Dukhan Lohar, Maku Lohar, Lundia Lohar, Dharam Lohar, Bahuran Lohar through a customary hukumnama and issued rent receipt having taken rent and Najarana Rs.40/- in the year 1937 which has been mentioned in Schedule-A of the plaint.”

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It is evident from the pleading made at Paragraph-2 wherein specific stand taken by the plaintiff that the recorded tenants were not able to retain property and they abandoned it in the year 1932 and thereafter, the Ex-Landlord took abandoned land in his possession and begun to cultivate upon it, later on he settled an area of 10.51 acres to Dukhan Lohar, Maku Lohar, Lundia Lohar, Dharam Lohar, Bahuran Lohar through a customary hukumnama and issued rent receipt having taken rent and Najarana Rs.40/- in the year 1937 which has been mentioned in Schedule-A of the plaint, admittedly the amendment petition filed under Order VI Rule 17 of the C.P.C. after filing of the written statement by the defendants, although the copy of the same has not been annexed but it transpires from the impugned order that the plaintiffs has led evidence and also exhibited hukumnama which has marked as Exhibit-1 wherein the witness No.1 and 2 have recorded their statement

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wherein they have specifically taken the stand that the said hukumnama had been issued in the year 1937 and the witness No.2 who himself is the plaintiff No.9 has also disclosed in the cross examination at Paragraph-28 that the hukumnama had been issued in the year 1937.

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He has further deposed in paragraph-2 of the plaint, Bahuran Lohar who himself was one of the person in whose favour the so called hukumnama had been issued and therefore, according to his deposition it is evident that the person in whose favour the said hukumnama had been issued, has disclosed to have been issued in the year 1937 and therefore, it is the specific case of the plaintiffs who have supported the statement at Paragraph-2 to the pleading made in the plaint wherein this hukumana said to have been issued in the year 1937.

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7. In the light of the aforesaid admission this Court is required to see as to whether the parties can be given any opportunity by allowing the amendment petition resiling from their stand.

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It is settled position of law that the statement as has been made by the plaintiffs either in the plaint or in the written statement the same cannot be allowed to be recalled as has been held by the Hon’ble Apex Court in the case of Ram Niranjan Kajaria Vrs. Sheo Prakash Kajaria & Ors. reported in (2015) 10 SCC 203, wherein at paragraph-19 which reads hereunder as:

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“19. In Gautam Sarup v. Leela Jetly, after considering Panchdeo Narain Srivastava and Modi Spg. And Wvg. Mills Co. Ltd. v. Ladha Ram & Co. and several other decisions dealing with the amendment on withdrawal of admissions in the pleadings, it was held at para 28 as follows: (Gautam Sarup case, SCC p. 94)

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“28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.”

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It is evident from the impugned order dated 27.02.2019

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wherein the trial court has considered the aforesaid reason of resiling/recalling the stand taken in the plaint, has rejected the petition filed under Order VI Rule 17 of the C.P.C.

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Further the conduct of the petitioner that he has accepted the order dated 27.02.2019 by filing a petition under order XXIII Rule 1 of the Code of Civil Procedure for withdrawal of the suit which also suggests that he has accepted the order passed by the trial court under Order VI Rule 17 of the C.P.C. and allowed the trial to proceed and now the trial court as the stage of ongoing hearing, therefore, on this ground also coupled with the ground as stated in the preceding paragraph the order dated 27.02.2019 requires no interference.

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So far as the order dated 22.04.2019 is concerned, by which the petition filed before going into the legality and propriety of the order the provision needs to refer herein as contained under Order XXIII Rule 1 of the C.P.C. reads hereunder as:-

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WITHDRAWAL AND ADJUSTMENT OF SUITS

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“[1 . Withdrawal of suit or abandonment of part of claim . — (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

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Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

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(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other persons.

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(3) Where the Court is satisfied,—

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(a) that a suit must fail by reason of some formal defect, or

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(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,

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it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the

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claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim.

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(4) Where the plaintiff—

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(a) abandons any suit or part of claim under subrule (1), or

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(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3),

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he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

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(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.]”

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It is evident from the aforesaid provision that the withdrawal of the suit or abandonment of part of claim if, the court is satisfy;

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(a) that a suit must fail by reason for some formal defect, or

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(b) that there are sufficient grounds for allowing the plaintiff to institute

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a fresh suit for the subject-matter of a suit or part of a claim,

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Therefore, the withdrawal with liberty to file afresh one by the trial court if the suit will fail by reason of some formal defect or there are sufficient grounds available.

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The reasons required to be available for exercising the power conferred under the said provision reflects the object which suggests that it is not to allow plaintiff an opportunity to commence the trial fresh after he has failed to conduct the suit with care and diligence and to substantiate his case by evidence.

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It is not in dispute that a suit can be withdrawn at any time even at the stage of appeal but the question of availability of the requirement contained therein i.e. suit may not fail due to some formal defect or there must be sufficient cause and so far as withdrawal of the suit at appeal stage is concerned, cannot be allowed unless very strong reasons are shown that the withdrawal would not affect anybody vested right, reference in this regard be made to the judgment rendered by the Hon’ble Apex Court in the case of R. Rathinavel Chettiar & Anr. Vrs. S. Sivaraman & Ors. reported in (1999) 4 SCC 89 , under Order

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XXIII Rule 1 of the C.P.C. to file a fresh suit in case of withdrawal of suit without permission to file a fresh suit is based on Rule of Public Policy i.e. if the parties are knowing and consciously allowed the suit to proceed and subsequent thereto in order to fill the lacuna if they are making an application for withdrawal with the leave to file afresh one it nothing but misuse of judicial proceeding as also the encourages the frivolous litigation, reference in this regard be made to the judgment rendered in the case of Sarguja Transport Service Vrs. State Transport Appellate Tribunal, Gwalior & Ors. reported in AIR 1987 SC 88, the question of formal defect as has been referred under sub-Rule 3(A) can be said to be a defect in the nature of Rule of procedure i.e. misjoinder of parties, of causes of action, non-payment of proper court fee, failure to disclose cause of action, reference in this regard be made to the judgment rendered by Hon’ble Orissa High Court in the case of Atul Krushna Roy Vrs. Raukishore Mohanty & Ors. reported in AIR 1956 Orissa 77.

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The same has also been taken into consideration by the Hon’ble Apex Court in the judgment rendered in the case of Haldiram Bhujia Wala & Anr. Vrs. Anand Kumar Deepak Kumar & Anr. reported in (2000) 3 SCC 250, the sufficient ground as has been stipulated under sub-Rule 3(b) fell for consideration can be said to be a sufficient ground and certainly do not include the possibility of the failure on the part of the plaintiff to prove his case.

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In the light of the position of law as referred hereinabove the order dated 22.04.2019 has been appreciated by this Court wherefrom it transpires that after amendment having been sought for by him which has been rejected the petition under Order XXIII Rule 1 of the C.P.C. and it is only then petition for withdrawal of the suit with a leave to file fresh one has not been filed.

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The trial court has recorded the fact about the rejection of the amendment petition and after considering the aforesaid aspect of the matter has come to the finding that only in order to get the direct relief which he could not have been able to get in the petition filed under Order VI Rule 17 and another petition under Order XXIII Rule 1 of the C.P.C. has been filed and therefore, the said petition has been

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held to be not maintainable and accordingly the permission to file fresh suit on the same cause of action, has been declined.

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8. This Court after going across the material available on record more particularly in the order dated 27.02.2019 and after going across the petition filed under Order XXIII Rule 1 as has been annexed under Annexure-5 no such reason has been stipulated save and except the technical reasons for withdrawal of the suit has been referred at Paragraph-2 thereof, but what technical reason, the same has not been disclosed, therefore, the said petition would be said to be without any valid reason and without any ingredient which ought to have been incorporated to satisfy the court regarding its consideration by going across the reason either of the defect in formal nature or sufficient cause but in absence thereof, no such direction can be passed by the trial court and rightly not passed, therefore, the said order passed under Order XXIII Rule 1 cannot be said to suffer from infirmity warranting any interference by this Court under Article 227 of the Constitution of India.

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9. In view thereof, the writ petition fails and accordingly, dismissed.

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(Sujit Narayan Prasad, J.)

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Madhav

Ram Lakhan Lohar Alias Ram Lakhan Lohra v. Mantu Turi

Case brief

What is this about?

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Ram Lakhan Lohar Alias Ram Lakhan Lohra v. Mantu Turi

Case brief

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