Patna High Court
Brij Mohan Mishra vs Krishna Mohan Mishra on 27 January, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.576 of 2019
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Brij Mohan Mishra, Son of Late Baldeo Mishra, Resident of Village- Yogiyar,
Post Office- Areraj, Police Station- Govindganj, District- East Champaran.
... ... Petitioner/s
Versus
1.1. Kripa Kuwar, W/o Late Krishna Mohan Mishra Resident of Village- Yogiar,
Post Office- Areraj, Police Station- Govindganj, District- East Champaran.
1.2. Vikash Mohan Mishra S/o Late Krishna Mohan Mishra Resident of Village-
Yogiar, Post Office- Areraj, Police Station- Govindganj, District- East
Champaran.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Raghav Prasad, Advocate
For the Respondent/s : Mr. Dhurendra Kumar, Advocate
Mr. Sumit Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 27-01-2025
Heard learned counsel for the parties on the point of
admission and I intend to dispose of the present petition at the
stage of admission itself.
2. The petitioner is aggrieved by the order dated
21.06.2018
passed by the learned Sub Judge, Areraj in Partition
Suit No. 984 of 2014 whereby and whereunder the learned Sub
Judge allowed the amendment petition dated 10.05.2018 filed
by the plaintiffs/respondents, for amendment in the plaint, under
Order VI Rule 17 read of the Code of Civil Procedure (for short
‘the Code’).
3. Learned counsel for the petitioner submits that the
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petitioner is the defendant in Partition Suit No. 984 of 2014
which has been filed by the plaintiffs/respondents seeking ½
share in the suit property. During pendency of the trial, plaintiffs
filed a petition on 10.05.2018 under Order VI Rule 17 of the
Code for amendment of plaint. By filing the application for
amendment, the plaintiffs sought declaration to the effect that
any deed of gift or Will executed by his mother is wrong and
illegal and his mother has got no right to execute the Will or gift
deed and the same was not binding upon the plaintiffs. The
defendant/petitioner filed his rejoinder mentioning inter alia
that the deeds were executed 6-7 years back and gift deed was
mentioned in written statement of the Partition Suit No. 52 of
2011 on 13.08.2012. Similarly, the probate petition was filed by
the wife of the defendant bearing Probate Case No. 23 of 2011
and the plaintiff appeared in that case and filed his reply. Thus,
the gift deed has been challenged after six years and declaration
against Will has been sought after seven years. Learned counsel
further submits that the limitation period for challenging the
documents is three years only and hence, a time barred relief has
been sought by way of amendment. Learned counsel further
submits that the learned trial court though mentioned that the
amendment sought was barred by law of limitation still it
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allowed the application for amendment at the cost of Rs.
1,000/-. Learned counsel thus submits that the approach of the
court is against the law. The amendment is not only time barred
but it has also been filed after the commencement of trial and no
due diligence for not bringing the amendment earlier has been
shown. Thus, the learned counsel submits that the impugned
order is not sustainable and the same needs to be set aside.
4. Learned counsel appearing on behalf of respondent
submits that the amendment has been allowed in the interest of
justice and to avoid the multiplicity of litigation and this was the
reason for allowing the amendment by the learned trial court.
Learned counsel further submits that the amendment has been
sought to introduce facts about the gift deed/Will executed by
the mother of the respondent and petitioner with regard to suit
property and if the same is not allowed, it would result in
multiplicity of litigation and the controversy between the parties
could not be adjudicated. Thus, the learned counsel submits that
the impugned order needs no interference by this Court. In this
regard learned counsel relied on the decision of this Court in the
Case of Kamal Kishore Prasad vs. Sri Lal Kumar Rai & Ors.
(Civil Misc. No. 657 of 2017) whereby and whereunder, vide
judgment dated 12.06.2016, this Court relying on the decision of
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the Hon’ble Supreme Court in the case of Life Insurance
Corporation of India vs. Sanjeev Builders (P) Ltd., reported in
2022 SCC OnLine SC 1128, allowed the amendment even after
commencement of trial.
5. I have given my thoughtful consideration to the
rival submission of the parties. Admittedly, the amendment
which has been sought, has been brought, after commencement
of trial and the nature of amendment makes it abundantly clear
that a time barred claim is sought to be introduced. Order VI
Rule 17 deals with the amendment in pleadings and it reads as
under:-
“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:
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.”
6. If the plaintiffs/respondents were having
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knowledge about the instruments which they sought to be
brought through the amendment claiming it to be without title
and not binding upon the plaintiff, the same should have been
brought prior to the commencement of trial and ideally when the
plaint was filed. If no relief could be granted on the ground of
limitation, at the same time the said amendment could not be
casually allowed for another reason that the amendment has
been sought to be introduced after commencement of trial
without showing any due diligence for not bringing the
amendment earlier. On these counts, the learned trial court erred
while passing the impugned order because being a court of law
it was supposed to proceed in the matter strictly in accordance
with law. When the law prohibits amendment of such nature, the
learned trial court should have refrained from allowing such
amendment.
7. The Hon’ble Supreme Court in the case of Life
Insurance Corporation of India (supra) has held that by way of
amendment, the prayer for amendment is generally required to
be allowed unless a time barred claim is sought to be
introduced. In such case the claim being time barred becomes a
relevant factor for consideration. If the contention of the
plaintiff is taken to be true that he was not having the
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knowledge of execution of the said gift deed earlier but once the
plaintiff has got the knowledge, the limitation will start running
and in the present case the plaintiff was having the knowledge
6-7 years back about the instruments and not bringing the
amendment earlier is a clear case of negligence on part of the
plaintiff and the plaintiff cannot be allowed to take benefit of his
own wrong. For this reason, the reliance placed by the
respondent on the case of Kamal Kishore Prasad (supra) is not
appropriate. Law on this point is very much clear that a time
barred amendment could not be allowed on which an
independent suit would not be maintainable on the ground of
limitation. Moreover, when the trial has proceeded ahead from
the preliminary stage and the evidence of the parties has been
closed, any amendment at the stage could be allowed only if the
plaintiff could have shown due diligence for not bringing the
amendment earlier which is not the case of the plaintiff.
Therefore, the amendment sought by the plaintiff/respondent
was clearly barred under the proviso to Order VI Rule 17 and
also on the ground of seeking introduction by way of
amendment of a time barred claim. Furthermore, the
plaintiffs/respondents have utterly failed to show that despite
due diligence they could not have raised the matter earlier in
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time. Hence, such amendment will be hit by proviso to Order VI
Rule 17 of the Code.
8. The Hon’ble Supreme Court in the case of Radhika
Devi vs. Bajrangi Singh & Ors., reported in AIR 1996 SC
2358, in paragraph nos. 5 and 6 held thus;-
“5. We find no force in the contention of the
appellant. No doubt, the amendment of the
plaint is normally granted and only in
exceptional cases where the accrued rights are
taken away by amendment of the pleading, the
Court would refuse the amendment. This Court
in Laxmidas Dahyabhai Kabarwala vs.
Nunabhai Chunilal Kabarwala [(l964) 2 SCR
567 at 582) held thus :
“It is, no doubt, true that, save in
exceptional cases, leave to amend
under 0.6, Rule 17 of the Code will
ordinarily be refused when the
effect, of the amendment would be to
take away from a party a legal right
which had accrued to him bay lapse
of time. But this rule can apply only
when either fresh allegations added
or fresh reliefs sought by way of
amendment. Where, for instance, an
amendment is sought which merely
clarifies an existing pleading and
does not in substance add to or alter
it, it has never been held that the
question of a bar of limitation is one
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allowing such clarification of a
matter already contained in the
original pleading. The present is a
fortiori so. The defendants here
were not seeking to add any
allegation nor to claim any fresh
relief which they had prayed for in
the pleading already filed”.
6. In that case this Court considered the cross-
objections to be treated as a cross suit since no
alteration was being made in the written
statement to treat it was a plaint originally
instituted. The amendment which was sought to
be made was treated to be clarificatory and,
therefore, this Court had upheld the amendment
of the written statement and treated it to be a
cross suit. The ratio therein squarely applies to
a fact situation where the party acquires right
by bar of limitation and if the same is sought to
be taken away by amendment of the pleading,
amendment in such circumstances would be
refused. In the present case, the gift deed was
executed and registered as early as July 28,
1978 which is a notice to everyone. Even after
filing of the written statement, for 3 years no
steps were taken to file the application for
amendment of the plaint. Thereby the accrued
right in favour of the respondents would be
defeated by permitting amendment of the plaint.
The High Court, therefore, was right in refusing
to grant permission to amend the plaint”.
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9. In the light of discussion made hereinabove, the
impugned order dated 21.06.2018 passed by the learned Sub
Judge, Areraj in Partition Suit No. 984 of 2014 is not sustainable
and the same is set aside.
10. Accordingly, the present petition stands allowed.
(Arun Kumar Jha, J)
balmukund/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 29.01.2025 Transmission Date NA
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