Patna High Court
Arun Kumar Singh vs Abhimanyu Prasad Singh on 17 June, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1106 of 2023
======================================================
1. Arun Kumar Singh S/o Gopal Prasad Singh R/o Sheo Lok Apartment, ABN
School, New Patliputra Colony, Boring Road, Patna, P.S- Patliputra, Bihar-
800013
2. Ajit Kumar Singh S/o Gopal Prasad Sinha R/o Gopal Prasad Sinha, Flat No.
605, Geeta Enclave, Pillar No. 242, Digha AIIMS Elevated Road, Near
Bachpan Play School, East Gola Road, Digha, P.S. Danapur, Patna, Bihar-
801503
... ... Petitioners
Versus
Abhimanyu Prasad Singh S/o Late Gupteshwar Singh, R/o Village- Karma
Bhagwan, P.S.-Aurangabad, P.O.- Karma Bhagwan, District- Aurangabad,
Bihar.
... ... Respondent
======================================================
Appearance :
For the Petitioner/s : Mr. Dayanand Singh, Advocate
Mr. Dhananjay Kashyap, Advocate
For the Respondent : Mr. Parth Gaurav, Advocate
Ms. Gargi, Advocate
Ms. Ridhima Dvivedi, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date :17-06-2025
The instant civil miscellaneous petition has been filed
by the petitioners for setting aside the order dated 09.08.2023
passed by learned Munsif, Civil Court, Aurangabad in Title Suit
No. 87 of 2000, whereby and whereunder the learned trial court
has allowed the amendment application dated 31.03.2023 filed
by the plaintiff/respondent under Order 6 Rule 17 of the Code of
Civil Procedure (hereinafter referred to as 'the Code').
02. The factual matrix of the case, in short, is that the
respondent filed Title Suit No. 87 of 2000, challenging the gift
deed dated 04.02.1972 executed by father of the plaintiff in
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favour of defendant nos. 1 and 2, seeking declaration that the
gift deed was inoperative and void. The suit has been filed
against the petitioners who have been made defendant nos. 1
and 2 and the defendant no. 3 was father of defendant nos. 1 and
2. During pendency of the suit, respondent filed an application
for amendment of plaint on 30.11.2009, challenging another gift
deed dated 04.02.1972 executed by father of the respondent in
favour of one Anju Lata Singh but the said amendment
application was withdrawn on 21.01.2012 with submission that
a fresh amendment application would be filed. Thereafter, a
fresh amendment application was filed by the respondent on
21.01.2012
against which the petitioners filed a rejoinder and
the said application was dismissed with direction to file a fresh
application mentioning therein the date of knowledge of the gift
deed sought to be brought on record and challenged by the
proposed amendment. Subsequently, the respondent filed
another application for amendment of plaint vide application
dated 31.03.2023. A rejoinder was filed to this amendment
application by the petitioners. The learned trial court, on
consideration of case of the parties, allowed the amendment
application with cost of Rs. 1,600/-. This order is under
challenge before this Court.
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03. The learned counsel for the petitioners submitted
that the impugned order has been passed illegally without
appreciating the fact that the amendment application was
hopelessly barred by limitation and there has been concealment
of material facts by the respondent. Allowing the amendment
has caused serious prejudice to the rights of the petitioners and
the impugned order is in contravention of the settled principles
of law. Learned counsel further submitted that the learned trial
court has failed to consider that challenging the gift deed of 4 th
of February, 1972, by way of amendment, is time-barred. The
respondent had all along been knowing about the said gift deed
and still failed to challenge the same. The respondent has filed
an application in Chakbandi Case No. 140 of 1983 wherein he
has mentioned that his father had not executed any deed in
favour of Anju Lata Singh, as the respondent challenged the
claim of Anju Lata Singh about execution of the deed in her
favour by the father of the respondent. Learned counsel further
submitted that respondent never denied the averment made in
the application nor denied his signature or handwriting.
Therefore, the plaintiff has not provided any reasonable or
sufficient cause for not bringing this fact in his plaint though he
was having knowledge of the same since the institution of
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Chakbandi Case No. 140 of 1983 before Chakbandi Officer,
Aurangabad. Learned counsel further submitted that the learned
trial court has allowed a time barred claim and serious prejudice
has been caused to the petitioners. Learned counsel referred to
the decision in the case of Radhika Devi Vs. Bajrangi Singh &
Ors., reported in (1996) 7 SCC 486 wherein the Hon’ble
Supreme Court relying on the decision in the case of Laxmidas
Dahyabhai Kabarwala Vs. Nanabhai Chunilal Kabarwala,
reported in [1964] 2 SCR 567 held that the ratio of the latter
case squarely applies to a 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. Learned counsel next relied to
a three Judge Bench decision of Hon’ble Supreme Court in the
case of T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board,
reported in (2004) 3 SCC 392 wherein referring to the decision
in the case of L.J. Leach & Co. Ltd. v. Jardine Skinner and
Co., reported in AIR 1957 SC 357, 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 and thus the Hon’ble Supreme Court dismissed
the appeal which has challenged the order of a LPA Bench of
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High Court of Madras which set aside the order of learned
Single Judge by which amendment was allowed. Thus, the
learned counsel submitted that the respondent had the
knowledge about the gift deed in the year 1984 and he did not
challenge the same till filing the application for amendment
before the learned trial court and therefore, the respondent has
been trying to bring a time barred claim by way of amendment
and the same could not be allowed. Learned counsel further
submitted that in Chakbandi Case No. 140 of 1983, Gopal
Prasad Singh, father of the petitioners had moved an application
for consolidation in reference to property acquired by Anju Lata
Singh vide deed no. 1799 of 04.02.1972. In the said case, the
respondent vide application dated 21.03.1984 raised objection
submitting that the gift deed was executed in the name of Anju
Lata Singh in Mauja Alampur and not in Mauja-Fesar. As such,
it becomes abundantly clear that in application dated
21.03.1984, respondent has referred to gift deed no. 1799 dated
04.02.1972 and the said gift deed was well within the
knowledge of respondent. Moreover, no other instrument/sale
deed had been executed by Gupteshwar Singh in favour of
Kumari Anju Lata Singh except for the gift deed dated
04.02.1972. As the gift deed dated 04.02.1972 has been brought
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under challenge after 51 years, as such, the valuable right
accruing due to limitation has been frustrated by the effect of the
impugned order and for this reason, the impugned order is fit to
be set aside.
04. The learned counsel appearing on behalf of
respondent vehemently contended that there is no infirmity in
the impugned order and the same does not need any interference
by this Court. Learned counsel submitted that the learned trial
court, on consideration of submission made on behalf of the
parties, proceeded to pass the impugned order. The learned trial
court has considered the objection raised by the petitioners that
the respondent had the knowledge of gift deed in 1984 but he
did not file any suit against the said gift deed and for this reason,
the amendment was barred by limitation. The learned trial court
after due consideration rejected this contention of the
petitioners. Learned counsel further submitted that objection of
the petitioners on this ground is misconceived and has been
rightly rejected by the learned trial court. Learned counsel
further submitted that, moreover, the contents of the application
purportedly filed by the respondent on 21.03.1984 talks about
kewala (sale deed) and there is nothing in the averment which
might be construed as application refers to gift deed which has
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been sought to be challenged by way of amendment by the
respondent.
05. Learned counsel for the respondent further
submitted that the case is still at pretrial stage and Order-VI
Rule-17 of the Code confers wide jurisdiction on the court to
allow either parties to alter or amend the pleadings on such
terms as may be just for determination of real questions in
controversy between the parties. Learned counsel further
submitted that the Courts have, time and again, held that pretrial
stage amendments are to be allowed liberally than those that are
sought to be made after commencement of the trial. The
dominant purpose of allowing the amendment is to minimize the
litigation and in the present case where submission has been
made that the relief sought by amendment was barred by
limitation is arguable, such amendment cannot be disallowed.
The defendants would always have the opportunity to file their
reply by way of amended written statement/additional written
statement and cross-examining the witnesses and leading their
own evidence on this point. Learned counsel further submitted
that the respondent got the knowledge about gift deed in
question on 23.11.2009 for the first time whereas petitioners
claimed that the respondent got the knowledge about said gift
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deed on 21.03.1984 and it gives rise to disputed question of fact
and can only be resolved only after leading evidence. Therefore,
factum of knowledge about the deed of gift being challenged by
way of amendment becomes a triable issue and for this reason,
learned trial court has rightly passed the impugned order
allowing the amendment which does not warrant any
interference by this Court under the supervisory jurisdiction.
Learned counsel further submitted that the petitioners have been
trying to impute knowledge to the respondent by referring to an
undated application filed by their father, defendant no. 3, but the
same cannot prove knowledge of the plaintiff about execution of
any gift deed. Moreover, the said application has been filed and
has been signed by Gopal Prasad Singh and not by this plaintiff
and knowledge of plaintiff cannot be inferred. Learned counsel
further submitted that the petitioners want adjudication of a
triable issue in supervisory jurisdiction of this Court and the
same cannot be permitted, as only challenge to allowing the
amendment is to be seen by this Court and not disputed
questions of fact.
06. In support of his contention, learned counsel for
the respondent referred to a number of authorities. Learned
counsel referred to the decision of Hon’ble Supreme Court in
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the case of Mohinder Kumar Mehra Vs. Roop Rani Mehra &
Ors., reported in 2018(1) PLJR 91(SC), wherein the challenge
was to the relief which was sought to be amended was found to
be barred by time and also giving rise to a separate cause of
action and the Hon’ble Supreme Court relied on the decision in
the case of Mahila Ramkali Devi & Ors. v. Nandram (Dead)
through Lrs. & Ors, reported in (2015) 13 SCC 132 wherein in
Paragraphs-20, 21 and 22 held as under:
“20. It is well settled that rules of
procedure are intended to be a handmaid to the
administration of justice. A party cannot be
refused just relief merely because of some
mistake, negligence, inadvertence or even
infraction of rules of procedure. The court
always gives relief to amend the pleading of the
party, unless it is satisfied that the party
applying was acting mala fide or that by his
blunder he had caused injury to his opponent
which cannot be compensated for by an order
of cost.
21. In our view, since the appellant sought
amendment in Para 3 of the original plaint, the
High Court ought not to have rejected the
application.
22. In Jai Jai Ram Manohar Lal v.
National Building Material Supply [(1969) 1
SCC 869 : AIR 1969 SC 1267] , this Court held
that the power to grant amendment to
Patna High Court C.Misc. No.1106 of 2023 dt.17-06-2025
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justice and is not governed by any such narrow
or technical limitations.”
07. Learned counsel for the respondent next referred
to the decision of Hon’ble Supreme Court in the case of Baldev
Singh & Ors. vs. Manohar Singh & Anr. reported in (2006) 6
SCC 498 wherein the Hon’ble Supreme Court relied on the
decision in the case of Raghu Thilak D. John Vs. S. Rayappan
& Ors., reported in (2001) 2 SCC 472 wherein it was held that
in the circumstances of the case plea of limitation being
disputed could be made a subject matter of the issue after
allowing the amendment prayed for and thus, the Hon’ble
Supreme Court allowed the amendment application holding that
the plea of limitation can be allowed to be raised as an
additional defence. Learned counsel next relied on the decision
of a learned Single Judge of this Court in the case of Anup
Kumar & Anr. Vs. Narain Prasad and Ors., reported in (2011)
4 PLJR 729 wherein paragraph-20 reads as under:
“20. In view of my above discussion, it
appears that the plaintiffs filed the
amendment application because of the
defence taken by the defendants in the written
statement. As has been held above by the
Hon’ble Apex Court that the pre-trial
Patna High Court C.Misc. No.1106 of 2023 dt.17-06-2025
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those which are sought to be made after
commencement of the trial. No doubt, the
proviso added to Order VI, Rule 17 is
couched in language of mandatory form but
since the rule regarding amendment
including the proviso is procedural provision
relating to amendment of pleadings and the
limitations in respect thereof the same should
be interpreted to advance justice and not to
defeat justice. The Court should not adopt
too technical approach on one way or the
other. The discretion should be exercised
judiciously considering the facts of each
case. No straight jacket formula can be
framed. The Hon’ble Supreme Court as
quoted above has given some guidelines but
those guidelines are not exhaustive but are
illustrative only. The discretion is left open
on the Court which is to be decided in
considering facts and circumstances in each
case. The Court should not apply such
beneficent provision in a pedantic manner.”
08. Learned counsel for the respondent next referred
to the decision in the case of Raghu Thilak D. John (supra)
wherein the Hon’ble Supreme Court held that the dominant
purpose of allowing the amendment is to minimize the
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litigation. Learned counsel lastly relied on the decision of
Hon’ble Supreme Court in the case of Sampath Kumar Vs.
Ayyakannu & Ors., reported in (2002) 7 SCC 559 wherein the
Hon’ble Supreme Court in Paras-11 to 13 held as under:
“11. In the present case the amendment is
being sought for almost 11 years after the date
of the institution of the suit. The plaintiff is not
debarred from instituting a new suit seeking
relief of declaration of title and recovery of
possession on the same basic facts as are
pleaded in the plaint seeking relief of issuance
of permanent prohibitory injunction and which
is pending. In order to avoid multiplicity of
suits it would be a sound exercise of discretion
to permit the relief of declaration of title and
recovery of possession being sought for in the
pending suit. The plaintiff has alleged the
cause of action for the reliefs now sought to be
added as having arisen to him during the
pendency of the suit. The merits of the
averments sought to be incorporated by way of
amendment are not to be judged at the stage of
allowing prayer for amendment. However, the
defendant is right in submitting that if he has
already perfected his title by way of adverse
possession then the right so accrued should not
be allowed to be defeated by permitting an
amendment and seeking a new relief which
would relate back to the date of the suit and
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advantage accrued to him by lapse of time, by
excluding a period of about 11 years in
calculating the period of prescriptive title
claimed to have been earned by the defendant.
The interest of the defendant can be protected
by directing that so far as the reliefs of
declaration of title and recovery of possession,
now sought for, are concerned the prayer in
that regard shall be deemed to have been made
on the date on which the application for
amendment has been filed.
12. On the averments made in the
application, the same ought to have been
allowed. If the facts alleged by the plaintiff are
not correct it is open for the defendant to take
such plea in the written statement and if the
plaintiff fails in substantiating the factual
averments and/or the defendant succeeds in
substantiating the plea which he would
obviously be permitted to raise in his pleading
by way of consequential amendment then the
suit shall be liable to be dismissed. The
defendant is not prejudiced, more so when the
amendment was sought for before the
commencement of the trial.
13. For the foregoing reasons, the appeal
is allowed. The impugned orders of the High
Court and the trial court are set aside. The
plaintiff is permitted to incorporate the plea
sought to be raised by way of amendment in
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extent given up by him before the trial court.
However, in view of the delay in making the
application for amendment, it is directed that
the plaintiff shall pay a cost of Rs 2000
(Rupees two thousand only) as a condition
precedent to incorporating the amendment in
the plaint. The prayer for declaration of title
and recovery of possession shall be deemed to
have been made on the date on which the
application for amendment was filed.”
09. On the strength of authorities, learned counsel for
the respondent submitted that the learned trial court has rightly
proceeded in the matter and allowed the application of
amendment filed by the respondent. Learned counsel further
submitted that the authorities referred by the learned counsel for
the petitioner are not application in the present circumstances of
the case as the facts of those cases were very different from the
facts of the present case. Learned counsel further submitted that
even in the case of T. N. Alloy Foundry Co. Ltd. (supra), the
Hon’ble Supreme Court has 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
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ordered and does not affect the power of the Court to order it.
Thus, the learned counsel submitted that there is no infirmity in
the impugned order and the same needs to be affirmed.
10. I have given my thoughtful consideration to the
rival submission of the parties as well as facts and
circumstances of the case. Order VI Rule 17 of the Code reads
as under :
“17. Amendment of pleadings.–The
Court may at any stage of the proceedings allow
either party to alter or amend his pleading 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”.
11. Though a number of amendments have been
sought for by the respondent, the order allowing the amendment
has been challenged only on the ground that some time barred
relief has been allowed to be brought on record by way of
amendment application. Admittedly, the case is still at the
pretrial stage. There is no admission which is being sought to be
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withdrawn by the respondent. The challenge to the amendment
is only on the ground that the respondent had knowledge about
the gift deed on 21.03.1984 and he sought the amendment after
almost 40 years of his knowledge and 51 years of the execution
of the gift deed. There is no admission by the respondent
regarding this averment made by the petitioners. The respondent
claims that he got the knowledge only on 23.11.2009 and
thereafter, filed the application for amendment which was
subsequently withdrawn and thereafter, another application to
the same effect was dismissed with liberty to the respondent to
file a fresh application giving date of his knowledge. In these
circumstances, the knowledge of the respondent becomes a
disputed question. The learned trial court was also confronted
with the same question and it rejected the contention of the
petitioners. If the contention of the parties give rise to a disputed
questions of fact, the same could be thrashed out only after
adducing the evidence by the parties and it would not be proper
to form any opinion on the basis of contention of one of the
parties or on the basis of ambivalent document. Therefore,
purportedly a time barred relief can be sought by way of
amendment if the same raises a disputed question of fact about
limitation and allowing such amendment cannot be faulted.
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12. The Hon’ble Supreme Court in the case of
Pankaja v. Yellapa, reported in (2004) 6 SCC 415, relying on
the decision in the case of Raghu Thilak D. John (supra),
allowed the amendment prayed for holding that the question of
limitation has to be decided in the trial and directed the trial
court to frame necessary issue with regard to limitation and
decide the said issue in accordance with law bearing in mind the
law laid down in the case of L.J. Leach and Co. Ltd. (supra).
13. Therefore, in the light of the aforesaid discussion,
I am of the considered opinion that the learned trial court
proceeded in the matter in proper manner and there is no error
of jurisdiction while passing the impugned order and hence, the
impugned order dated 09.08.2023 passed by learned Munsif,
Civil Court, Aurangabad in Title Suit No. 87 of 2000 is
affirmed.
14. Accordingly, the present petition stands
dismissed.
(Arun Kumar Jha, J)
Ashish/-
AFR/NAFR AFR CAV DATE 11.04.2025 Uploading Date 17.06.2025 Transmission Date NA