Patna High Court
Musay Tanti vs Raj Kumar Mandal on 20 August, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1740 of 2019
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Musay Tanti, S/o Late Chamru Tanti, R/o Village-Mirachak, PS Industrial
Barai, District Bhagalpur.
... ... Petitioner/s
Versus
1. Raj Kumar Mandal, S/o Late Manti Mantri, R/o Village-Mirachak, PS
Industrial Barai, District-Bhagalpur.
2. Lalo Devi, D/o Manti Mantri, R/o Village-Mirachak, PS Industrial Barai,
District-Bhagalpur.
3. Meera Devi, D/o Manti Mantri, R/o Village-Mirachak, PS Industrial Barai,
District-Bhagalpur.
4. Udha Devi, D/o Manti Mantri, R/o Village-Mirachak, PS Industrial Barai,
District-Bhagalpur.
5. Gultan Tanti, S/o Late Chun Chun Tanti, R/o Village-Mirachak, PS
Industrial Barai, District-Bhagalpur.
6. Paltan Tanti, S/o Late Chun Chun Tanti, R/o Village-Mirachak, PS Industrial
Barai, District-Bhagalpur.
7. Binod Tanti, S/o Late Chun Chun Tanti, R/o Village-Mirachak, PS Industrial
Barai, District-Bhagalpur.
8. Bablu Tanti, S/o Late Chun Chun Tanti, R/o Village-Mirachak, PS Industrial
Barai, District-Bhagalpur.
9. Tempa Tanti, s/o Late Chun Chun Tanti, R/o Village-Mirachak, PS Industrial
Barai, District-Bhagalpur.
10. Ampa Tanti, S/o Late Chun Chun Tanti, R/o Village-Mirachak, PS Industrial
Barai, District-Bhagalpur.
11. Bhabesh Tanti, S/o Late Chun Chun Tanti, R/o Village-Mirachak, PS
Industrial Barai, District-Bhagalpur.
12. Janki Devi, D/o Late Chun Chun Tanti, R/o Village-Mirachak, PS Industrial
Barai, District-Bhagalpur.
13. Chandan Devi, D/o Late Chun Chun Tanti, R/o Village-Mirachak, PS
Industrial Barai, District-Bhagalpur.
14. Guddi Kumari, D/o Late Chun Chun Tanti, R/o Village-Mirachak, PS
Industrial Barai, District-Bhagalpur.
15. Rama Nand Tanti, S/o Musay Tanti, R/o Village-Mirachak, PS Industrial
Barai, District-Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Chandra Kant, Advocate
Mr. Navin Kumar, Advocate
Mr. Sudhanshu Prakash, Advocate
For the Respondent/s : Mr.Indeshwari Prasad Mandal, Advocate
Patna High Court C.Misc. No.1740 of 2019 dt.20-08-2025
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======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 20-08-2025
The present civil miscellaneous petition has been filed
by the petitioner for setting aside the order dated 16.09.2019
passed by the learned Sub Judge-X, Bhagalpur in Title Suit No.
175/1995 whereby and whereunder the learned trial court
rejected the amendment application dated 09.09.2019 filed by
the plaintiff/petitioner under Order VI Rule 17 read with Section
151 of the Code of Civil Procedure (hereinafter referred to as
'the Code').
2. Briefly stated, the facts of the case are that, the
petitioner is one of the plaintiffs and he and respondents 2nd set
have filed Title Suit No. 175/1995 for declaration of right and
title over the suit land with further declaration that
defendants/respondents 1st set have no right and title over the
said land. Further declaration has been sought that survey entry
with regard to said land is not correct and restraining orders
against the defendants not to interfere with the possession of the
plaintiffs has also been sought. Schedule A of the plaint contains
land which is situated at Mauza- Mirachak, P.S.-Barari, Khata
No. 132, Khesra No. 259, having an area of 90 decimals in the
district of Bhagalpur and the boundary of the same is North-
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Laboo Tanti, South-Damodar Tanti, East- Harni Devi and West-
Megho Devi.
3. The plaintiffs case is that suit land was the property
of Ex-landlord Naresh Mohan Thakur, who sold the same to the
mother of the plaintiff no.1 and the mother purchased the suit
land in the name of Chunchun Tanti vide sale deed dated
04.09.1959
. At that time, Chunchun Tanti was minor and the
purchase was made from the joint family income. Further case
of the plaintiffs is that on 17.06.1960, the mother of the plaintiff
no. 1 and Chunchun Tanti, after attaining majority, executed a
fake sale deed without consideration to one Mantri Mandal.
Mantri Mandal was friend of the family of the plaintiffs and
after some time, he returned all the lands except this land. The
plaintiffs filed the suit claiming their share in the suit land as the
mother of plaintiff no. 1 died and Chunchun Tanti also died and
his family was not good terms with the plaintiffs. The plaintiffs
further claim that the suit land is being used by the plaintiffs and
they have been paying rent to the State of Bihar. However, in the
entry of the Survey Department, the suit land has been shown in
the name of one Fata Mandal, son of Gholtan Mandal. Fata
Mandal was said to be the father of Mantri Mandal. The
plaintiffs claim that the survey entry is incorrect and the same
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has been prepared without any basis. The defendants have no
interest in the suit land. But they are disputing the right and title
of the plaintiffs. The plaintiffs further made averment that the
sale deed executed by Chunchun Tanti in favour of Mantri
Mandal dated 17.09.1960 and subsequent sale deed by Mantri
Mandal in favour of Raj Kumar Mandal dated 10.10.1977 is not
binding on the plaintiffs. The defendants have neither title nor
possession over the suit land. When the defendants obstructed
the possession of the plaintiffs, the present suit has been filed.
4. After service of notice, defendants appeared and
denied the statement made in the plaint. The case of the
defendants is that on 17.09.1960, the defendants purchased the
suit land and mutation was done in their name and rent was
being paid to the State of Bihar. Subsequently, survey entry was
made in the name of the defendants and the plaintiffs did not
challenge the survey entry when the khatiyan was finally
published. Further defendants sold the land to one Raj Kumar
Mandal on 10.10.1977. It is further submitted that the nature of
the land has gradually changed. Initially it was used to
manufacturing of bricks and brick-kiln on the suit land had been
running for 15 years. Now the land has become ditch and it is
being used as pond for rearing fishes.
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5. It further transpires that after completion of
pleadings, the learned trial court framed the issues and directed
the parties to lead evidence in respect of their respective cases.
It further transpires that argument of defendants was completed
on 22.06.2019 and the plaintiffs started its argument and in
course of arguments of the plaintiffs on 15.07.2019, the
plaintiff/petitioner filed a petition under Order VI Rule 17 of the
Code of Civil Procedure, which was allowed with cost of
Rs.5,000/-. Another application under Order 6 Rule 17 read with
Section 151 of the Code has been filed on 09.09.2019 by the
plaintiff/petitioner. The defendants filed their rejoinder to the
amendment application opposing the amendment sought by the
plaintiffs. The learned trial court, after hearing the parties,
rejected the application dated 09.09.2019, filed by the
plaintiff/petitioner, vide order dated 16.09.2019. This order is
under challenge before this Court.
6. The learned counsel for the petitioner submitted
that the learned trial court has dismissed the application seeking
amendment by the plaintiff/petitioner on unfounded grounds.
The learned trial court considered the merits of the case which
considering the amendment application but the merits of the
amendments are not to be seen at this stage. The learned counsel
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further submitted that the learned trial court held that allowing
the amendment will change the nature of the suit and trial will
restart. But by way of amendment, the plaintiff/petitioner has
sought to add one more relief, that the two sale deeds not
binding on the plaintiffs and this would not change the nature of
the suit and the suit will remain a title suit. The learned counsel
further submitted that the learned trial court ought to have
considered that the said amendment is essential for just decision
of the case and for complete adjudication of the dispute, the
amendments sought by the plaintiffs need to be allowed. The
learned counsel further submitted that one of the amendments is
with regard to a family partition which took place in the year
1994 and the suit land falling in the share of the plaintiffs.
Further in the relief portion, it has been sought to be added as
‘the Kewala dated 17.09.60 and 10.10.77 is not binding to the
plaintiff’. Further relief has been sought through amendment
that if the plaintiffs are dispossessed by the defendants,
possession may be granted to the plaintiffs through the process
of the court. The learned counsel further submitted that
apparently the plaintiffs have filed the suit claiming right, title,
interest and possession over the suit land and that the defendants
had/have no concern with it and survey entry in the name of
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Khatiyan in respect of suit land is wrong and incorrect and at the
same time, sought injunction orders. Now, the plaintiffs want to
bring on record explanation as to how the plaintiffs got right,
title and interest over the suit land by partition between brothers
Chunchun Tanti and Musai Tanti. Similarly in paragraph 9, the
plaintiff/petitioner sought introduction of the word ‘bogus
kewalas’ conferring no title. Since, in paragraph 8a, already the
fact has come about challenge to the sale deeds dated
17.09.1960 and 10.10.1977, seeking relief is natural
consequence of the challenge. The learned counsel further
submitted that if the amendments are allowed, the
plaintiff/petitioner would not lead further evidence and complete
his argument so as to dispose of the case.
7. The learned counsel next submitted that there could
be no application of proviso to Order 6 Rule 17 of the un-
amended Code in the present case since the suit has been filed in
1995 and Amendment Act made it clear that the amended
proviso would not be applicable on pleadings made prior to the
amendment which came into effect on 01.07.2002. So there
could be no bar for seeking amendment even at the stage of
argument.
8. In support of his contention, the learned counsel
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referred to the decision of the learned Single Judge of this Court
in the case of Shri Shankar Bhagwan & Ors. vs The State of
Bihar & Ors., reported in 2008 (2) PLJR 588 wherein the
learned Single Judge discussed the amendment in the Code of
Civil Procedure which was brought into force w.e.f. 01.07.2002,
to support his contention that the amended provision of Order 6
Rule 17 of the Code in respect of amendment being barred if no
due diligence is shown after commencement of trial, is not
applicable to the case which has been filed prior to the
amendment on 01.07.2002 and referred to paragraphs 7, 8, 9 of
the aforesaid decision which read as under :
“7. The said provision of the Code was
amended by the Code of Civil Procedure
(Amendment) Act, 2002 (XXII of 2002) which was
brought into force from 1st July, 2002 vide
Government Notification No. S.O. 604 (E), dated 6th
June, 2002 and which reads as follows:
“Order VI, Rule 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
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could not have raised the matter before the
commencement of trial.”
8. However, section 16 of the
abovementioned Amending Act provides repeal and
savings, sub-section (2) of which reads as follows:–
“Notwithstanding that the provisions of
this Act have come into force or repeal under sub-
section (1) has taken effect, and without prejudice to
the generality of the provisions of section 6 of the
General Clauses Act, 1897,–
(a) the provisions of section 102 of the
principal Act as substituted by section 5 of this Act,
shall not apply to or affect any appeal which had
been admitted before the commencement of section
5; and every such appeal shall be disposed of as if
section 5 had not come into force;
(b) the provisions of Rules 5, 15, 17 and
18 of Order VI, of the First Schedule as omitted or,
as the case may be, inserted or substituted by section
16 of the Code of Civil Procedure (Amendment) Act,
1999 and by section 7 of this Act shall not apply to
in respect of any pleading filed before the
commencement of section 16 of the Code of Civil
Procedure (Amendment) Act, 1999 and section 7 of
this Act.”
9. From the aforesaid provisions of law it
is quite apparent that the legislature had clearly
meant that generally provided in section 6 of the
General Clauses Act. 1897 with respect to effect of
repeal was not affected by the Amending Act and
that the provision of Rules 17 and 18 of Order VI of
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the Code as substituted by the Amending Act of 2002
shall not apply to the cases filed prior to the
commencement of the Amending Act. In the instant
case admittedly suit was filed in the year 1988,
whereas the aforesaid Amending Act came into force
on 1.7.2002, hence the amended provision of the
Code with respect to amendment of the pleadings
would not be applicable to the instant suit and any
amendment sought to be made in the pleadings of
that suit would be governed by the provision of
Order VI, Rule 17 of the Code which was in force
prior to the coming into force of the Amending Act
and thus for allowing amendment after
commencement of the trial, the Court is not required
to come to any conclusion that in spite of due
diligence the party could not raise the matter before
commencement of trial in the suit and amendment of
pleading can be allowed at any stage of the
proceeding of the suit provided it is just and is
necessary for determining the real question in
controversy between the parties”.
9. In support of his contention that the amendment
could be allowed at any stage, learned counsel referred to the
decision of the Hon’ble Supreme Court in the case of Vasantha
(dead) through LR. vs. Rajalakshimi @ Rajam (dead) through
Lrs. reported in (2024) 5 SCC 282 wherein the Hon’ble
Supreme Court held that amendment of the plaint can be
permitted at any stage of the suit and even at the second
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appellate stage.
10. The learned counsel next referred to the decision
of this Court in the case of Smt. Bibha Devi vs. Smt. Annu Devi
reported in 2024 (5) BLJ 74 wherein this Court allowed the
amendment to be incorporated while the evidence of the
plaintiffs was being recorded subject to cost holding that it is for
the Court to decide that such amendment would enable the court
to consider the dispute between the parties in true perspective
and would help it in arriving at a right decision and allow it to
determine the real question in controversy. This Court further
held that if such amendment avoids multiplicity of litigation,
then these amendments need to be allowed.
11. The learned counsel next referred to the decision
of the Hon’ble Supreme Court in the case of Pankaja and Anr.
vs. Yellappa (dead) by Lrs. And Ors. reported in AIR 2004 SC
4102. Relevant paragraphs 12, 13 and 14 read as under :
“12. So far as the court’s jurisdiction to
allow an amendment of pleadings is concerned,
there can be no two opinions that the same is wide
enough to permit amendments even in cases where
there has been substantial delay in filing such
amendment applications. This Court in numerous
cases has held that the dominant purpose of
allowing the amendment is to minimise the
litigation, therefore, if the facts of the case so
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permit, it is always open to the court to allow
applications in spite of the delay and laches in
moving such amendment application.
13. But the question for our
consideration is whether in cases where the delay
has extinguished the right of the party by virtue of
expiry of the period of limitation prescribed in law,
can the court in the exercise of its discretion take
away the right accrued to another party by
allowing such belated amendments.
14. The law in this regard is also quite
clear and consistent that there is no absolute rule
that in every case where a relief is barred because
of limitation an amendment should not be allowed.
Discretion in such cases depends on the facts and
circumstances of the case. The jurisdiction to allow
or not allow an amendment being discretionary,
the same will have to be exercised on a judicious
evaluation of the facts and circumstances in which
the amendment is sought. If the granting of an
amendment really subserves the ultimate cause of
justice and avoids further litigation the same
should be allowed. There can be no straitjacket
formula for allowing or disallowing an amendment
of pleadings. Each case depends on the factual
background of that case”.
12. The learned counsel also submitted that the Court
has got wide powers to allow amendment at any stage or even
after commencement of trial if the same is necessary for
determination of real controversy between the parties. Thus, the
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learned counsel submitted that the impugned order could not be
sustained and the same needs to be set aside.
13. On the other hand, learned counsel appearing on
behalf of the respondents vehemently contended that there is no
infirmity in the impugned order and the same is proper and
correct. The learned trial court has considered the fact that just
before the instant amendment application, the plaintiffs filed an
application for amendment and when the said application was
allowed, the plaintiffs again approached this Court by filing the
instant application when the argument of the plaintiffs started in
this case. In order to fill up his lacuna of the case, the plaintiffs
has been seeking amendment. The learned counsel further
submitted that amendment has been sought at a very late stage
and is malafide. The suit has been filed in the year 1995 and not
making any application seeking amendment for almost 24 years
shows the callous and negligent attitude of the plaintiffs. The
learned counsel further submitted that by way of amendment,
the plaintiffs have been seeking a relief against a time barred
claim. If the plaintiffs are allowed to challenge the sale deeds of
1960 and 1977 at this stage, apparently the same has become
time barred, and the Court would be allowing a time barred
claim for which the period of limitation is only 3 years. The
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learned counsel further submitted that if any partition has taken
place in the year 1994 in the family of the plaintiffs, it should
have been mentioned in the plaint of 1995 and should not have
been sought to be incorporated in 2019. This amendment itself
smacks of malafide. By introducing the amendment, the
plaintiffs want to deny the claim of the defendants which is
based on registered sale deeds of the year 1960 and 1977 and as
the plaintiffs were having knowledge of the sale deeds, not
bringing this fact in their plaint, for all these years, shows lack
of bonafide on the part of the plaintiffs/petitioners. Thus, learned
counsel submitted that the impugned order needs no interference
by this Court.
14. I have given my thoughtful consideration to the
rival submission of the parties and perused the record.
15. Order VI Rule 17 of the Code provides for
amendment in pleading 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:
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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.”
16. The proviso appended to Order 6 Rule 17 of the
Code was added by the Code of Civil Procedure (Amendment)
Act, 2002 which came into force with effect from 01.07.2002.
Now Section 16(2)(b) of the amending Act, 2002 reads as
under :
“the provisions of Rules 5, 15, 17 and 18 of Order
VI of the First Schedule as omitted or, as the case
may be, inserted or substituted by Section 16 of
the Code of Civil Procedure (Amendment) Act,
1999 and by Section 7 of this Act shall not apply
to in respect of any pleading filed before the
commencement of Section 16 of the code of Civil
Procedure (Amendment) Act, 1999 and Section 7
of this Act”.
17. Therefore, a plain and simple reading of the
aforesaid provision creates an exception to the general rule of
interpretation about amendments in procedural law being
retrospective. The insertion of proviso to Order 6 Rule 17 of the
Code by Section 7 of Amendment Act 22 of 2002 read with
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Section 16 (2) (b) of the Amending Act, 2002 makes it clear that
the proviso shall not apply in respect of any pleading filed
before the commencement of the said Act, which means the
changes made by the Amending Act of 2002 shall not apply in
respect of amendment of pleading filed prior to commencement
of the said provision. Now the meaning of pleading is provided
in Order 6 Rule 1 of the Code which means plaint or written
statement. Therefore, the amendments sought by the
plaintiff/petitioner could not be denied on the ground that the
plaintiff/petitioner has failed to show due diligence for not
seeking amendment prior in time.
18. Now, it has to be seen whether the amendments
sought by the petitioner could be allowed in the background of
the fact that the suit has been pending since 1995 and the
petitioner has on a number of occasions exercised the privilege
under Order 6 Rule 17 of the Code for making amendments in
the plaint.
19. A three Judges Bench of the Hon’ble Supreme
Court in the case of Pirgonda Hongonda Patil v. Kalgonda
Shidgonda Patil & Ors, reported in AIR 1957 SC 363 quoted
with the approval the principles enunciated by Batchelor, J. in
the judgment of Kisandas Rupchand case (1900) ILR 33 Bom.
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644 wherein it has been held that all amendments ought to be
allowed which satisfy the two conditions; (a) of not working
injustice to the other side, and (b) of being necessary for the
purpose of determining the real questions in controversy
between the parties. The Hon’ble Supreme Court further held
that amendments should be refused only where the other party
cannot be placed in the same position as if the pleading had
been originally correct, but the amendment would cause him an
injury which could not be compensated in costs.
20. Now, in the present case, the plaintiff/petitioner
has sought the amendment with regard to the fact that oral
family partition had taken place in the year 1994 and the
plaintiff/petitioner and his brother got ½ share in the joint family
property and the suit land went in the share of the plaintiff and
his son.
21. This amendment clarifies the facts already pleaded
by the plaintiff in his plaint and could be considered as an
explanation and cannot be said to be introduction of a new fact.
Similarly, making amendment with regard to the sale deeds
dated 17.09.1960 and 10.10.1977 and relief sought against such
sale deeds could not be said to introduce any new case because
the plaint in its body already talks about the sale deeds dated
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17.09.1960 and 10.10.1977 and seeking relief by way of
amendment against the sale deeds could not be said to be a new
relief. The defendants have all along been knowing about the
averment regarding sale deeds dated 17.09.1960 and 10.10.1977
and they could not be said to be taken by surprise.
22. In Pankaja (supra), the Hon’ble Supreme Court
observed that an application for amendment of the pleading
should not be disallowed merely because it is opposed on the
ground that the same is barred by limitation, on the contrary,
application will have to be considered bearing in mind the
discretion that is vested with the court in allowing or
disallowing such amendment in the interest of justice.
23. Therefore, it is to be kept in mind that object of
courts and rules of procedure is to decide rights of the parties
and not to punish them for their mistake.
24. Apparently the relief against the sale deeds dated
17.09.1960 and 10.10.1977 appears to be time barred, but if the
amendment is not allowed the purpose of determining the real
controversy between the parties would be frustrated and
litigation would continue to multiply. Therefore, I am of the
considered opinion that poor drafting of the plaint or
incompetence of the person behind such poor drafting should
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not prevent the courts from arriving at a just decision by taking
a holistic view so that the litigation could be given a quietus and
multiplicity of litigation is avoided. But at the same time,
putting the other side at inconvenience must be compensated by
awarding cost and providing opportunity to such defendants to
rebut the contention sought through the amendment.
25. Therefore, in the light of discussion made
hereinbefore, I am of the view that the learned trial court
committed an error of jurisdiction when it refused to allow the
amendment petition and rejected the same. Hence, I do not find
the impugned order dated 16.09.2019 to be sustainable in the
eyes of law and, accordingly, the same is set aside.
Consequently, the application dated 09.09.2019 filed by the
plaintiff/petitioner before the learned trial court is allowed
subject to payment of cost of Rs. 25,000/-(twenty five thousand
only) to be paid by the petitioner to the contesting
defendant/respondent on the first date before the learned trial
court after passing of this judgment.
26. However, the contesting defendant/respondent
will be given ample opportunity to rebut/controvert the claim of
the plaintiff/petitioner sought to be brought through amendment
including filing of amended written statement/additional written
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statement.
27. As a result, the instant petition stands allowed.
(Arun Kumar Jha, J)
V.K.Pandey/-
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