Dismissed

Prabhu Giri v. Jamuni Devi and Ors.

Patna HC2 Jul 2019CWJC/11046/2010

Case brief

AI extract

What is this about?

Writ petitioner challenged rejection of amendment petition in a partition suit. The High Court upheld the trial court's decision, finding the amendment time-barred for a new suit and would alter the suit's nature by introducing inconsistent claims requiring strangers as parties.

What did the court decide?

Writ petition dismissed without order as to costs allowing the impugned order rejecting the amendment petition to stand.

Prabhu Giri Vs Jamuni Devi and Ors. — Partition | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11046 of 2010

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======================================================

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PRABHU GIRI S/O Mahatim Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimur Bhabhua

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... ... Petitioner/s

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Versus

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Jamuni Devi W/o late Daroga Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimurBhabhua

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Dineshwar Giri S/O Daroga Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimurBhabhua

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Vijay Shankar Giri S/O Dineshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Ajay Shankar Giri S/O Dineshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Aman Giri S/O Dineshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimurBhabhua

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Fula Devi W/O Ram Adhar Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimurBhabhua

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Uday Narayan Giri S/O Ram Adhar Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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8.1. Most Maya Kuer W/o late Rajesh Giri R/o Village- Oriya Dih, P.S. Ramgarh, Distt. Kaimur.

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8.2. Sunny Minor Son of late Rajesh Giri R/o Village- Oriya Dih, P.S. Ramgarh, Distt. Kaimur.

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Om Prakash Giri S/O Uday Narayan Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Prince Giri S/O Rajesh Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimurBhabhua

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Sangita Devi W/o Bhanu Prakash Giri R/o Vill- Oriya Dih, P.S. Ramgarh, 1. Distt. Kaimur

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Sunita Giri Wife of Janardan Giri R/o Vill- Oriya Dih, P.S. Ramgarh, Distt. 2. Kaimur

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Pinki Giri W/o Ramratan Giri R/o Vill- Oriya Dih, P.S. Ramgarh, Distt. 3. Kaimur

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Priyanka Giri W/o Ravi Shankar Giri R/o Vill- Oriya Dih, P.S. Ramgarh, 4. Distt. Kaimur

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Most. Jamuni Kuer W/O Late Shiv Narayan Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Srikant Giri S/O Late Shiv Narayan Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Ramakant Giri S/O Late Shiv Narayan Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Muneshwar Giri S/O Late Shiv Narayan Giri R/O Vill Oriyadih,

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Patna High Court CWJC No.11046 of 2010 dt.02-07-2019 2/9

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P.S.Ramgarh, Distt-KaimurBhabhua

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Ravikant Giri S/O Late Shiv Narayan Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Umesh Giri Minor Son Of Sri Kant Giri Under The Guardianship Of His Father Sri Kant Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Abhishek Giri Minor Son Of Rama Kant Giri Under The Guardianship Of Their Father Rama Kant Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Ajit Giri Minor Son Of Ram Kant Giri Under The Gurardianship Of Their Father Rama Kant Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Suchit Giri Minor Son Of Ram Kant Giri Under The Gurardianship Of Their Father Rama Kant Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Most. Gangotri Kuer W/O Late Tarkeshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Awadhesh Giri S/O Late Rakehshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Chandra Bhushan Giri S/O Late Rakeshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Ram Bhushan Giri S/O Late Rakeshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Arbind Giri S/O Late Rakeshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Angad Giri S/O Late Rakeshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimur Bhabhua

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Saheb @ Akhilesh Giri S/O Late Rakeshwar Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Ritesh Giri Minor Son Of Awadhesh Giri Under The Guardianship Of His Father Awadhesh Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Sugriv Giri S/O Late Raj Nath Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimur Bhabhua

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Praduman Giri Minor Son Of Chandra Bhushan Giri Under The Guardianship Of Their Father Chandra Bhushan Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Arpit Giri Minor Son Of Chandra Bhushan Giri Under The Guardianship Of Their Father Chandra Bhushan Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimur Bhabhua

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Sri Ram Giri S/O Sugriv Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Roshan Giri Minor Son Of Ram Bhushan Giri Under The Guardianship Of His Father Ram Bhushan Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimur Bhabhua

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Patna High Court CWJC No.11046 of 2010 dt.02-07-2019 3/9

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Saurav Giri Minor Son Of Sri Ram Giri Under The Guardianship Of His Father Sri Ram Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Not Known W/O Late Mohan Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimurBhabhua

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Satyam Giri Minor Son Of Late Mohan Giri Under The Guardianship Of His Mother Name Not Known R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Sudarshan Giri S/O Late Raj Nath Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Chandra Prakash S/o Sudarshan Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimurBhabhua

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Manju @ Bitan Devi W/O Late Kameshwar Giri, D/O Late Dudhnath Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Mahatim Giri S/O Late Shobh Nath Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Shyam Bihari Giri S/O Mahatim Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimur Bhabhua

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Shyam Sundar Giri S/O Mahatim Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-Kaimur Bhabhua

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Bikash Giri Minor Son Of Prabhu Giri Under The Grardianship Of His Father Prabhu Giri R/O Vill Oriyadih, P.S.Ramgarh, Distt-KaimurBhabhua

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Priyanshu Giri Minor Son Of Shyam Bihari Giri Under The Guardianship Of His Father Shyam Bihari Giri R/O Vill Oriyadih, P.S.Ramgarh, DisttKaimur Bhabhua

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... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr.Jitendra Prasad Singh For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH ORAL JUDGMENT Date : 02-07-2019

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The present writ petition has been filed for quashing the order dated 1.6.2010 passed by the learned court of Subordinate Judge I, Kaimur (Bhabhua) in Title Suit No. 269 of 2008 whereby and whereunder the petition filed by the petitionerplaintiff under Order 6 Rule 17 of the Code of Civil

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Patna High Court CWJC No.11046 of 2010 dt.02-07-2019 4/9

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Procedure for amendment of the plaint has been rejected.

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The brief facts of the case, according to the petitioner is that the petitioner herein, who is the plaintiff no. 1 filed a title suit bearing Title Suit No. 269 of 2008 for partition of 3/4th share in the joint family property, as mentioned in the schedule K of the plaint. The defendants had appeared and filed their written statement in the aforesaid suit denying the claim of the petitioner. Thereafter, the petitioner filed a petition dated 15.2.2010 under Order 6 Rule 17 read with Section 151 of the Civil Procedure Code for amendment of the plaint to the effect that three sale deeds be set aside and for the said purpose, name of the six persons be added as defendants to the suit. The defendant no. 7 had filed a rejoinder on 10.3.2010, objecting to the aforesaid amendment petition dated 15.2.2010 on the ground that the said lands which has been sold, are the personal self-acquired property of the sellers and with the same, the plaintiffs have nothing to do. It has also been stated that the

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Patna High Court CWJC No.11046 of 2010 dt.02-07-2019 5/9

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petition is not only time barred but the nature of the suit will also change, in case the said amendment, as sought by the plaintiff, is allowed. Lastly, an objection has been taken that a case is pending before the Director, Chankbandi, Patna, Bihar with regard to the disputed land wherein the plaintiff has not challenged the rights of the seller of the said lands to sell the land.

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The learned court of Sub-Judge I, Kaimur at Bhabhua by the impugned order dated 1.6.2010 has rejected the amendment petition filed by the petitioner herein-plaintiff, under Order 6 Rule 17 of the Civil Procedure Code on the ground that the sale deeds of the year 1980 are being sought to be challenged in the year 2010, which is time barred, the plaintiff has failed to file copies of the said sale deeds sought to be challenged and moreover, the said amendment proposed to be carried out at the behest of the plaintiff would change the nature of the suit.

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I have heard the learned counsel for the parties and gone through the materials on record.

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Patna High Court CWJC No.11046 of 2010 dt.02-07-2019 6/9

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The first issue which arises for the consideration is as to whether the proposed amendment at the behest of the plaintiff can be permitted, in case a fresh suit on the amended claim would be barred by limitation on the date of the application. In this regard, the learned trial court by the impugned order dated 1.6.2010 has come to a finding that by the amendment petition dated 15.2.2010 filed by the plaintiff under Order 6 Rule 17 of the Civil Procedure Code, the plaintiff has sought to challenge three sale deeds, which is time barred. This finding of the learned trial court has not been either controverted or disputed in the present writ petition by the petitioner herein. In this connection, it would be relevant to mention that a three Judge Bench of the Hon'be Apex Court in a case reported in (2004) 3 SCC 392 ( T.N. Alloy Foundry Co. Ltd. vs. T.N. Electricity Board ), relying on the celebrated judgment rendered in the case of the L. J. Leach & Co. Ltd. vs. Jardine Skinner & Co. ), reported in AIR 1957 SC 357 reiterated as under:-

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Patna High Court CWJC No.11046 of 2010 dt.02-07-2019 7/9

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“The law as regards permitting amendment to the plaint, is well settled. In L.J Leach & Co. Ltd. v. Jardine Skinner and Co. it was held that the Court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it.”

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Having regard to the law laid down by the Hon'ble Apex Court, as also the finding arrived at by the learned trial court in the impugned order dated 1.6.2010, this Court finds that the amendment petition filed by the petitioner herein dated 15.2.2010 under Order 6 Rule 17 of the Civil Procedure Code has rightly been rejected by the learned trial court by the impugned order dated 1.6.2010 since if a fresh suit was filed by the plaintiff with regard to the amended claim, the same would be barred by limitation as on the date of making the application for amendment.

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The other issue is as to whether the proposed amendment has the effect of introducing a new case so as to change the nature of the suit. In this

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Patna High Court CWJC No.11046 of 2010 dt.02-07-2019 8/9

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regard, it is relevant to point out that the suit in question has been filed by the petitioner-plaintiff no. 1, seeking partition of 3/4th share in the joint family property and now, by the amendment petition dated 15.2.2010, the petitioner herein seeks amendment of the plaint to the effect that the three sale deeds in question be set aside. This Court finds that the plaintiff-petitioner herein is trying to introduce a totally different, new and inconsistent case and if the said proposed amendment is allowed to be carried out, the very nature of the suit would change from a partition suit to a declaratory suit and moreover, in a suit for partition amongst the family members, strangers (i.e. the purchasers / buyers named in the said three sale deeds) would have to be also arrayed as defendants. The law, in this regard, is very clear inasmuch as the Hon'ble Apex Court in a judgment reported in ( 2019) 4 SCC 332 (M.Revanna vs. Anjanamman (dead) by legal representative & Ors.) has held that “leave to amend may be refused if it introduces a totally

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Patna High Court CWJC No.11046 of 2010 dt.02-07-2019 9/9

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different, new and inconsistent case or challenge the fundamental character of the suit “

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This Court is of the view that the application for amendment of the plaint, if allowed, would change the nature and character of the suit, hence, this Court finds that the learned trial court has rightly rejected the application of the petitioner dated 15.2.2010 filed under Order 6 Rule 17 of the Civil Procedure Code by the impugned order dated 1.6.2010.

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Having regard to the facts and circumstances of the case and for the reasons mentioned hereinabove, this Court finds no infirmity in the impugned order dated 1.6.2010 passed by the Sub- Judge I, Kaimur (Bhabhua), hence, the writ petition stands dismissed, however, without any order as to costs.

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(Mohit Kumar Shah, J)

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ajay gupta/-
AFR/NAFR	AFR
CAV DATE	NA
Uploading Date	2.9.2019
Transmission Date	NA

Prabhu Giri v. Jamuni Devi and Ors.

Case brief

What is this about?

What did the court decide?

Prabhu Giri v. Jamuni Devi and Ors.

Case brief

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What did the court decide?

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