Jharkhand High Court
Prabodh Kumar Tiwary (Adopted) vs Rakesh Kumar Tiwari (Adopted) on 24 June, 2025
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
2025:JHHC:16653
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 436 of 2025
Prabodh Kumar Tiwary (Adopted), Son of Sahdeo Tiwary, aged about
59 years, resident of Village- Tharhi Dulampur Tq. Rohini, P.O.- Devsangh
P.S.- Jasidih , Sub-Division & District- Deoghar. ... Petitioner
-Versus-
1. Rakesh Kumar Tiwari (Adopted), Son of Late Malti Devi, Wife of Late
Sahdeo Tiwary, resident of Village- Tharhi Dulampur, P.O.- Devsangh, P.S.
Kunda, Sub-Division & District- Deoghar.
2. Birma Debya, Wife of Late Mahendra Tiwary (Deleted)
3. Shailja Debya, Wife of Late Chandrika Tiwary (Deleted)
4. Sukun Debya, daughter of Late Mahendra Tiwary.
5. Sudama Devi, daughter of Late Mahendra Tiwary
6. Malti Devi, Wife of Late Sahdeo Tiwary (Deleted)
Respondent No. 2 to 6, all are resident of Village- Tharhidulampur Tq.
Rohini, P.O.- Devsangh, P.S.- Jasidih now Kunda, Sub- Division & District-
Deoghar.
7. Binod @ Binodanand Tiwary, Son of Late Annapurna Devi.
8. Barun Choubey
9. Pradeep Choubey
Sl. No. 8 and 9, both are Son of Late Tripurari Choubey
Respondent nos. 7 and 9 are resident of Village- Chihardhania, P.O.-
Tapovan, P.S.- Kunda, Sub-Division & District- Deoghar.
... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. R.N. Sahay, Senior Advocate
Mrs. Bakshi Vibha, Advocate
For the O.P. No. 1 : Mr. Shiv Narayan Singh, Advocate.
Mr. Pran Pranay, Advocate.
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04/24.06.2025 Heard Mr. R.N. Sahay, learned senior counsel appearing for the
petitioner and Mr. Shiv Narayana Singh along with Mr. Pran Pranay, learned
counsel appearing for the opposite party no. 1, who have appeared suo motu.
2. This petition has been filed under Article 227 of Constitution of India
for setting-aside the order dated 11.04.2025 passed in Miscellaneous Civil
Application No. 19 of 2025 by the learned District Judge-III, Deoghar, arising
out of Civil Appeal No. 82 of 2024, whereby, the learned Court has been
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pleased to reject the prayer regarding correction in the genealogical table to
incorporate the name of Kunti Devi, the first wife of Sahdeo Tiwary and the
mother of this petitioner in the plaint of Title (Partition) Suit No. 497 of 1997.
3. Mr. R.N. Sahay, learned senior counsel appearing for the petitioner
submits that the Title Partition Suit No. 497 of 1997 was instituted by the
plaintiff/petitioner for a decree for partition for allotment of entire share to
the plaintiff in Schedule-A and half share in Schedule-B and C after getting in
carved out through process of court and for appointment of receiver and for
cost of suit for which the plaintiff is legally entitled. He further submits that
said suit was on contest decreed in favour of the petitioner/plaintiff vide
judgment and decree dated 26.04.2024 and 09.05.2025 respectively. He also
submits that during the proceeding of trial, an amendment petition was filed
by the petitioner under Order VI Rule 17 of the CPC which was registered
M.C.A. No. 171 of 2024 and after hearing the parties, the learned Court has
been pleased to allow the amendment petition vide order dated 19.04.2024.
He submits that however inadvertently amendment No. VII was not carried
by the petitioner in the plaint and decree has been passed and that was not
carried out in the decree. He submits against the said judgment and decree,
the defendants/opposite parties herein preferred the Civil Appeal No. 82 of
2024. He further submits that in course of examining the record of the appeal,
it was found that amendment No. VII, allowed by the learned Trial Court, has
not been incorporated in the plaint and in view of that, the petition has been
filed under Order VI Rule 17 read with Rule 18 of the CPC before the learned
first Appellate Court and the learned Court has been pleased to reject the
same. He submits that inadvertently that has not been incorporated in the
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plaint and formal amendment was sought to be carried at the appellate stage
and in view of that, the learned first Appellate Court has erred in rejecting
the said petition. He relied upon the judgment passed in the case of Dwarika
Prasad (D), through LRs v. Prithvi Raj Singh reported in 2024 SCC
OnLine SC 3828. Paragraphs 9 and 10 of the said judgment read as under:
“9. We have heard learned counsel for the appellant and
perused the record. We are of the opinion that the High Court
has erred in upholding the order of the Additional District
Judge. The Trial Court had rightly allowed the restoration
application filed by the Appellant under Order IX Rule 13 of
CPC. It is well settled that Courts should not shut out cases on
mere technicalities but rather afford opportunity to both sides
and thrash out the matter on merits. Further, we cannot let
the party suffer due to negligent or fault committed by their
counsel. This principle has been enunciated by this court in
the case of Rafiq v. Munshilal1, quoted as follows:
“3. The disturbing feature of the case is that under our
present adversary legal system where the parties
generally appear through their advocates, the
obligation of the parties is to select his advocate, brief
him, pay the fees demanded by him and then trust the
learned Advocate to do the rest of the things. The party
may be a villager or may belong to a rural area and may
have no knowledge of the court’s procedure. After
engaging a lawyer, the party may remain supremely
confident that the lawyer will look after his interest. At
the time of the hearing of the appeal, the personal
appearance of the party is not only not required but
hardly useful. Therefore, the party having done
everything in his power to effectively participate in the
proceedings can rest assured that he has neither to go
to the High Court to inquire as to what is happening in
the High Court with regard to his appeal nor is he to act
as a watchdog of the advocate that the latter appears
in the matter when it is listed. It is no part of his job.
Mr A.K. Sanghi stated that a practice has grown up in
the High Court of Allahabad amongst the lawyers that
they remain absent when they do not like a particular
Bench. Maybe, we do not know, he is better informed
in this matter. Ignorance in this behalf is our bliss. Even
if we do not put our seal of imprimatur on the alleged
practice by dismissing this matter which may
discourage such a tendency, would it not bring justice
delivery system into disrepute. What is the fault of the
party who having done everything in his power
expected of him would suffer because of the default of
his advocate. If we reject this appeal, as Mr A.K. Sanghi
invited us to do, the only one who would suffer would-3- C.M.P. No. 436 of 2025
2025:JHHC:16653not be the lawyer who did not appear but the party
whose interest he represented. The problem that
agitates us is whether it is proper that the party should
suffer for the inaction, deliberate omission, or
misdemeanour of his agent. The answer obviously is in
the negative. Maybe that the learned Advocate
absented himself deliberately or intentionally. We have
no material for ascertaining that aspect of the matter.
We say nothing more on that aspect of the matter.
However, we cannot be a party to an innocent party
suffering injustice merely because his chosen advocate
defaulted. Therefore, we allow this appeal, set aside
the order of the High Court both dismissing the appeal
and refusing to recall that order…..”
10. In the present case, the appellant has trusted his
counsel to manage the suit proceedings. However, he was not
made aware of the ex-parte decree by his previous counsel. It
is only after the appointment of the new counsel, the appellant
got to know about the exparte decree. Therefore, the
Additional Sessions Judge ought not to have exercised the
revisional jurisdiction in interfering with the order of the Trial
Court where it had exercised its discretion in setting aside the
ex-parte decree for justifiable reasons accepting the reasons
given by the defendant-appellant.”
4. Learned senior counsel appearing for the petitioner further relied upon
the judgment passed in the case of Rafiq and another v. Munshilal and
another, reported in (1981) 2 SCC 788. He also relied upon the judgment
passed in the case of Ram Kumar Gupta and others v. Har Prasad and
another, reported in (2010) 1 SCC 391. He further relied on the judgment
passed in the case of Salmona Villa Co-operative Housing Society Ltd.
v. Mary Fernandes and others, reported in 1996 SCC OnLine Bom 475.
Relying on the above judgments, he submits that the Courts are very liberal
in allowing the amendment petition and in view of that, formal order is
required to be passed, however, the learned first Appellate Court has been
pleased to reject the said petition. On these grounds, he submits that the
impugned order dated 11.04.2025 passed in M.C.A. No. 19 of 2025 may kindly
be set-aside.
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5. Per contra Mr. Shiv Narayan Singh, learned counsel appearing for the
opposite party no. 1 opposed the prayer and submits that trial has already
been commenced and judgment has been passed and decree is already
prepared and in a casual way, the petition has been filed by the
petitioner/plaintiff before the learned first Appellate Court, which is not
maintainable. He further submits that the learned first Appellate Court
has rightly passed the said order. He also submits that in the copy, which has
been served upon the defendants, the said amendment is not
incorporated. According to him, amendment No. -VII has been inserted by
way of handwriting, whereas, the entire petition is typed one. He further
draws the attention of the Court to Order VI Rule 18 of the CPC and submits
that if the amendment is not carried out within the time, that cannot be
allowed. On these grounds, he submits that this petition may kindly
be dismissed.
6. It is an admitted position that the Title (partition) Suit No. 497 of 1997
was instituted by the petitioner/plaintiff, which has been decreed vide
judgment dated 26.04.2024 and decree dated 09.05.2025. The amendment
petition filed by the petitioner was allowed by the learned Trial Court vide
order dated 19.04.2024. The Court has perused the amendment petition
annexed as Annexure-5 and finds that the entire petition is typed one,
whereas, amendment No. VII is incorporated in handwriting. The next
amendment sought should be VIII, which has also not been corrected and it
has been written as VII. Although, the amendment was allowed by the
learned Trial Court, however, Amendment No. VII has not been carried out
before the learned Court and the petitioner herein was allowed to continue
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the proceeding and pursuant to that the judgment and decree has been
passed by the learned Trial Court. In the appeal preferred by the
defendants/opposite parties, the said amendment was further sought to be
made in the plaint that too at the appellate stage and the learned first
Appellate Court considering the arguments of both the sides and the further
looking into the order of the learned Trial Court, has found that no order has
been passed by the learned Court on the prayer mentioned in para-7 of the
plaintiff’s application dated 27.03.2024.
7. Order VI Rule 17 of the CPC confers a discretionary jurisdiction on the
Court exercisable at any stage of the proceedings to allow either party to
alter or amend his pleadings in such manner and on such terms as may
be just. The rule goes on to provide that all such amendments shall be
made as may be necessary for the purpose of determining the real
questions in controversy between the parties. Unless and until the Court
is told how and in what manner the pleading originally submitted to the
Court is proposed to be altered or amended, the Court cannot effectively
exercise its power to permit amendment. An amendment may involve
withdrawal of an admission previously made, may attempt to introduce a
plea or claim barred by limitation or may be so devised as to deprive
the opposite party of a valuable right accrued to him by lapse of time
and so on. It is, therefore, necessary for an amendment applicant to
set out specifically in his application, seeking leave of the Court
for amendment in the pleadings, as to what is proposed to be
omitted from or altered or substituted in or added to the original
pleadings.
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8. The Court may allow or refuse the prayer for amendment in sound
exercise of its discretionary jurisdiction. It would, therefore, be better if the
reasons persuading the applicant to seek an amendment in the pleadings as
also the grounds explaining the delay, if there be any, in seeking the
amendment, are stated in the application so that the opposite party has an
opportunity of meeting such grounds and none is taken by surprise at the
hearing on the application.
9. It has been held by the Hon’ble Supreme Court in the case of J.
Samuel & others v. Gattu Mahesh & others, reported in 2012 (2) SCC
300 in paragraphs 12, 13 and 14, which read as under:
“12. The primary aim of the court is to try the case on its
merits and ensure that the rule of justice prevails. For this the
need is for the true facts of the case to be placed before the
court so that the court has access to all the relevant
information in coming to its decision. Therefore, at times it is
required to permit parties to amend their plaints. The Court’s
discretion to grant permission for a party to amend his
pleading lies on two conditions, firstly, no injustice must be
done to the other side and secondly, the amendment must be
necessary for the purpose of determining the real question in
controversy between the parties. However to balance the
interests of the parties in pursuit of doing justice, the proviso
has been added which clearly states 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.
13. Due diligence is the idea that reasonable investigation is
necessary before certain kinds of relief are requested. Duly
diligent efforts are a requirement for a party seeking to use
the adjudicatory mechanism to attain an anticipated relief. An
advocate representing someone must engage in due diligence
to determine that the representations made are factually
accurate and sufficient. The term `Due diligence’ is specifically
used in the Code so as to provide a test for determining
whether to exercise the discretion in situations of requested
amendment after the commencement of trial.
14. A party requesting a relief stemming out of a claim is
required to exercise due diligence and is a requirement which
cannot be dispensed with. The term “due diligence”
determines the scope of a party’s constructive knowledge,
claim and is very critical to the outcome of the suit.”
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10. In spite of allowing the petition, the amendment was not carried and
there is finding of the learned first Appellate Court that the said amendment
was not carried. For allowing the amendment particularly at the appellate
stage after conclusion of the trial, the parties are required to offer a
reasonable explanation for the delay in making the application seeking
amendment and particularly when such amendment is sought for, at the
appellate stage, the party seeking amendment should adduce, strong and
valid reasons, as to why the amendment sought for, was not made in the
Trial Court.
11. It is well-settled that an amendment cannot be allowed, if it causes
prejudice to the right of the party against whom an amendment is sought for.
It is also well-settled that the scope of the appellate Court is to test the
correctness of the judgment under the appeal and any benefit or vested right,
on account of declaration of the rights, inter se between the parties to the lis,
by the trial Court, cannot be allowed to be taken away by allowing in an
amendment to the pleadings, at the appellate stage, when the party
seeking an amendment could have brought in such amendment, even at the
time of the commencement of the trial. An amendment admitting to wipe
out the pleadings and admissions of the party, already considered by the
Trial Court, for the purpose of arriving at a decision, in the suit, cannot
be allowed to be substituted with a new case, at the appellate stage, which
would certainly cause serious prejudice to the party, against whom the
amendment is sought for. The effect of an admission in earlier pleading shall
not be permitted to be taken away, by any proposed amendment at the
appellate stage.
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12. So far as the judgment relied by Mr. R.N. Sahay, learned senior counsel
appearing for the petitioner in the case of Dwarika Prasad (D) through
LRs v. Prithvi Raj Singh (supra), in that case, the restoration application
was dismissed and amendment was not allowed and identical was the
situation in the cases of Rafiq and another v. Munshilal and another
and Ram Kumar Gupta and others v. Har Prasad and another (supra) .
All those cases were based on the point of restoration. What has been
discussed herein above, the facts of the present case are different from those
cases. So far as the judgments passed in the cases of Rafiq and another
v. Munshilal and another and Ram Kumar Gupta and others v. Har
Prasad and another and Salmona Villa Co-operative Housing Society
Ltd. v. Mary Fernandes and others (supra) are concerned, these three
judgments have been decided prior to insertion of Order VI Rule 17 with
proviso or on the peculiar facts of those cases. The Hon’ble Supreme Court
in various decisions upheld the power that in deserving cases, the Court can
allow delayed amendment by compensating the other side by awarding costs.
The entire object of the amendment to Order VI Rule 17 as introduced in
2002 is to stall filing of application for amending a pleading subsequent to
the commencement of trial, to avoid surprises and that the parties had
sufficient knowledge of other’s case. It also helps checking the delays in filing
the applications. In view of Order VI Rule 17 CPC which was amended in the
year 2002, the said three judgments are further not helping the petitioner
and other judgments are also on the point of restoration. Further, those cases
were dismissed for non-prosecution of the learned counsel who were
representing the petitioners therein and in light of that, those orders have
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been passed. Thus, the judgments relied by the learned senior counsel
appearing for the petitioner are not helping the petitioner.
13. What has been discussed herein above and in view of the aforesaid
facts, reasons and analysis, this Court finds that there is no error in the order
of the learned first Appellate Court in rejecting the said petition at the
appellate stage and, as such, this petition is dismissed.
14. Pending I.A., if any, is disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay-Simran/ A.F.R.
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