The High Court dismissed a writ petition challenging a trial court order allowing amendment of a written statement. The bench held the amendment did not alter the suit's nature, prevent determination of real controversy, and thus fell within established legal propositions permitting amendment.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19034 of 2010
====================================================== 1. Nagina Bhagat S/O Neur Bhagat R/O Vill.-Mishra Batraha, P.S.Uchakagaon, Distt.-Gopalganj. 2. Sureman Mishra @ Suroman Mishra S/O Hari Shankar Mishra R/O Vill.Mishra Batraha, P.S.Uchakagaon, Distt.-Gopalganj. 3. Vikrma Sah S/O Nagina Sah R/O Vill.-Mishra Batraha, P.S.Uchakagaon, Distt.-Gopalganj.
.... .... Plaintiffs-Petitioners Versus 1. Babu Ram Manjhi S/O Bachchu Manjhi R/O Vill.-Majirwa Khurd, P.S.Uchakagaon Distt.-Gopalganj.
… …. Defendant/respondent 1st set
… ….. Defendant/respondent 2nd set.
.... .... Plaintiff-Respondents 3rd set. ====================================================== Appearance : For the Petitioners : Mr. Nagendra Rai For the Respondent No.1 : Mr. Lokesh Kumar Singh
====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER
5 19-08-2015 Some of the plaintiffs of Title Suit No. 96 of 1998 have filed the writ application to challenge the legality of the order dated 23.8.2010 (Annexure-2) passed by the trial Judge
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whereby the amendment petition dated 1.7.2010 (Annexure-1) filed by the defendant-respondent was allowed.
I have already heard Mr. Nagendra Rai in support of the application and Mr. Lokesh Kumar Singh for the contesting respondent no.1.
The plaintiff filed the suit seeking declaration that the disputed land is a public land used by the general public and defendant-respondent has no right to settle the same to the defendant 1st set ( respondent herein). The suit land was RS plot no. 805, measuring an area of 2 katha, 8 dhurs appertaining to khata no. 26 situated in village Misra Bataraha in the District of Gopalganj. Obviously, the suit was filed by the plaintiff under Order 1 Rule 8 of the Code of Civil Procedure ( for short „the Code‟). According to the plaintiff, the suit land was recorded in RS khatiyan as “parti kadeem” which was in use by the public in general. Some part of the suit land contained a ditch which was used by the public for irrigation of land.
The defendant appeared and filed written statement and contested the suit. In the written statement, the defendant asserted in paragraph nos. 7 and 17 as under:-
“¼7½ ;g fd cs;ku eqnb;ku nQk ¼2½ vjthukfyl ls budkj ugh a gSA
17& ;g fd vly gky ;g gS fd l;rdjkjh ijrh Fkh oks firk eu eqnkyg cpw jke l;rdjkjh dks idM+dj vius dCts es a dj fy, oks tc gFkqvk jkt ls jksd Vksd
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“kq: gqvk rc firk eu eqnkyg us gFkqvk jkt ls 107 :i;k es a dk;eh cUnksoLr fd, pqdh ml oDr Collector dk sanction t:jh Fkk blfy, firk eu eqnkyg dk vkosnu sanction gsrw Collector ds ;gk x;k oks blds i”pkr firk eu eqnkyg us 107 :i;k pyku }kjk gFkqvk jkt es a tek fd, oks cUnksoLrh ds fnu ls firk eu eqnkyg oks eqnkyge dk n[ky dCtk yxkrkj obtgkj gfd;r [kwn oks obudkj gfd;r eqnb;ku iwoZt eqnb;ku oks vke turk ds yxkrkj dbZ ,d okjg lkyks a ls tkjh pyk vkrk gS ftlls Hkh eqnb;ku dk gfd;r vUnj l;rdjkjh ds eqdfey gks pwdk gSA”
In the light of the written statement the evidence was adduced by the parties. An application seeking amendment in para 7 of the written statement was filed for incorporating the word “va”kr%” in between the word „ls‟ and „budkj‟. This was deemed necessary in view of the other pleadings which the defendant made in the written statement including paragraph no. 17 thereof. The trial court after hearing the parties allowed the same. Appreciating the apparent contradiction in the statements made in paragraph nos. 7 and 17 of the written statement, the Court deemed them necessary sub serving the cause of justice and for resolution of the real controversy between the parties. Considering the delay in praying for such amendment in the written statement, the Court also imposed cost in the sum of Rs. 1,000/-.
The contention of Mr. Rai is that in para 7 of the written statement the averments made in para 2 of the plaint is
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not denied wherein it was stated that the land contained ditch which was used by the general public for irrigation. Such admission having been made the trial Court ought to have rejected the petition for amendment. In support of his contention he has relied on B.K. Narayana Pillai Vs Parameswaran Pillai
& Anr. 2000(1) PLJR 111 SC ( para 4).
Learned counsel for the defendant-respondent, on the other hand, supported the impugned order and the reasons assigned by the trial Court for allowing the application. According to him, such amendment neither changes the nature of the suit nor has caused any prejudice as the parties understood well the case of each other and led evidence. The court found the amendment necessary for determining the real question in controversy. If these situations prevail then no fault can be found with the order and this court would not exercise his discretionary writ jurisdiction under Article 227 of the Constitution of India to interfere therewith.
On a consideration of rival submissions, it appears to this Court that by such amendment the defendant has not set up a new case. The settled rule is that pleadings of the parties have to be considered in totality. One mistake either typographical or by inadvertence cannot be read in isolation to mean that the case
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of the other side has been admitted. The delay in filing such application is another relevant consideration. The trial court appreciating such delay imposed cost on the party applying for such amendment. By such amendment in para 7 of the written statement , the nature of the suit does not change. It remains the suit for declaration that the suit land is a public land and settlement thereof in favour of the defendant is without jurisdiction. In case of B.K. Narayana Pillai (supra), the Apex Court enunciated the broad proposition of law applicable to amendment of the plaint or the written statement. It was held that courts should be more generous in allowing the amendment of written statement as question of prejudice is less likely to operate. In that event there is one exception, however, is carved out that such permission would not be granted if the same causes injustice to the other side and/or any admission made in favour of the plaintiff is sought to be withdrawn. However, in the same case, the apex Court also held that amendment which are deemed necessary for determination of the real controversy in the suit should invariably be allowed provided the amendment does not alter or substitute the cause of action.
Going through the case of the parties and on appreciation of the entire pleadings made in the written
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statement, in my view, the amendment sought by the defendant and allowed under the impugned order does not cover the exception which has been dwelt upon by the Apex Court. In this context, the court would reiterate that in considering the submission that there has been admission of certain statement of fact made in the pleading of the other side the Court has to go through the entire pleadings of the parties to find out the case made therein. In the case at hand, the trial court has noticed the pleadings of the plaintiff and the relevant pleadings of the defendant in the written statement only to find that the amendment prayed for merits to be allowed for arriving at just decision in the suit. If that be the case then it would be an inappropriate exercise of jurisdiction under Article 227 of the Constitution of India to interfere therewith. The writ application lacks merit.
Dismissed.
(Kishore Kumar Mandal, J)
Shyam/-
U
2 issues framed by the court
Whether the High Court should interfere under Article 227 of the Constitution to quash the trial court's order allowing amendment in a written statement.
Whether a clerical typo in a written statement admits the plaintiff's case or requires amendment to clarify the defendant's defence.
Colour shows how this judgement treated each authority
B.K. Narayana Pillai vs Parameswaran PillaiExplained¶32
B.K. Narayana Pillai Vs Parameswaran Pillai & Anr. 2000(1) PLJR 111 SC
Nagina Bhagat and others
Babu Ram Manjhi and others
Kishore Kumar Mandal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
