Jharkhand High Court
Smt. Prabha Devi vs Smt. Sudha Agarwal & Ors. on 16 March, 2010
Equivalent citations: 2010 (3) AIR JHAR R 418, (2010) 89 ALLINDCAS 740 (JHA) (2010) 2 JCR 535 (JHA), (2010) 2 JCR 535 (JHA)
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P.(C). No. 5620 of 2005
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Smt. Prabha Devi ... Petitioner
-V e r s u s-
1. Smt. Sudha Agrawal
2. Om Prakash Agrawal
3. Sri Sachchidanand Lal
4. Smt. Pushpa Devi
5. Urmila Devi
6. Smt. Jambhawati Devi
7. Smt. Kamala Devi
8. Smt. Bimala Devi
9. Smt. Geeta Devi ... Respondents
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CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
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For the Petitioners : - Mr. Umesh Kumar Choubey, Advocate
For the Respondents : - M/s. Indrajit Sinha, Rohit Roy & H.K.Lal, Advocates
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13/16.03.2010Heard counsel for the parties.
2. The petitioner in this writ application has prayed for quashing the order dated 11.07.2005 (Annexure-5) passed by the Sub-ordinate Judge-2, Lohardagga in Partition Suit No. 8/2000 whereby learned court below has rejected the prayer of the petitioner for allowing her to amend her written statement under Order 6 Rule 17 of the C.P.C.
3. The facts of the case stated briefly is that the respondent No. 1 Smt. Sudha Agrawal had filed a Partition Suit before the court below impleading the present petitioner as defendant No. 6, claiming partition of the joint family properties and for carving out her share in the suit properties.
4. The petitioner/defendant No. 6 had appeared in the suit and had filed a written statement on 17.07.2003. More than one year and three months later, the petitioner filed an application on 04.10.2004 praying to the court below for allowing her to amend her written statement for the purpose of introducing certain facts which, according to her, were omitted by the plaintiff in the suit properties and which are essential for the just decision of the dispute arising in the suit. The trial court rejected the prayer by its order impugned.
5. Learned counsel for the respondents informs that as a matter of fact, even prior to the date when the petitioner had filed the amendment application on 04.10.2004, the evidences of the parties were concluded and the case was posted for arguments but pursuant to the interim order of stay passed by this Court on 14.05.2008, the judgement in the suit before the court below could not be passed.
6. Learned counsel for the petitioner submits that the learned court below has erred in failing to appreciate that the proposed amendment would not, in any manner, change the nature of the suit since in fact, the amendment was intended only to include certain other properties which the plaintiff has intentionally omitted to include in the suit properties. Learned counsel adds further that the learned court below has rejected the petitioner's prayer only on the ground that the prayer was made after a considerable delay and after commencement of the trial but has failed to exercise its discretion and to consider the petitioner's case in proper perspective.
7. Learned counsel for the respondents informs that as a matter of fact, the very prayer of the petitioner for seeking amendment of her purported written statement is misconceived in view of the fact that though some statements have been filed by the petitioner/defendant No. 6, purported to be her written statement, but the same was not in consonance with the mandatory provisions of procedure as laid down in Order 6 Rule 15 of the C.P.C. as because such document was unsigned by the defendant. Though the petitioner had subsequently filed an application before the court below purporting to submit verification of her earlier pleadings but that too was not in consonance with the requirements as mandated under the procedural law. Learned counsel adds further that the grounds on which the petitioner's prayer for amendment was rejected is totally in accordance with law in as much as, the law under Order 6 Rule 17 of the C.P.C. provides that no amendment in the written statement can be allowed after the commencement of the trial and further, that the petitioner has not offered any reasonable explanation for considerable delay in filing the amendment application.
8. Upon hearing the counsel for the parties and upon going through the impugned order, I find that admittedly the petitioner being impleaded as a defendant, was acknowledged as a necessary party in the suit for partition. Even as appearing from the impugned order, the petitioner has offered an explanation that since she is a married lady and living with her husband separately from the plaintiff, she was not aware of the relevant documents pertaining to the entire ancestral properties and it was only later when she could obtain the copies of the documents that she could realize that the plaintiff, for some unexplained reasons, has omitted to include certain properties in the partition suit in which the petitioner has also a lawful and legal claim.
9. Learned counsel for the petitioner argues that the other option for the petitioner could have been by way of filing a separate suit for partition but that would only compound and multiply the litigation which could otherwise be conveniently settled in the present suit and this aspect has not been taken into consideration by the learned court below.
10. From the perusal of the impugned order, it appears that the objections taken by the respondents to the propriety of the written statements filed by the petitioner, does not appear to have been taken by the plaintiffs/respondents before the trial court and in absence of any such objections, the trial court has accepted the written statements filed by the petitioner as being in compliance with the requisite procedure. It further appears that the trial court has rejected the petitioners prayer only on the ground of considerable delay and the trial having commenced but it has not taken into consideration the discretion which is vested in it as per the provisions of Order 6 Rule 17 of the C.P.C. for condoning the delay, if any, and for allowing the amendment sought for if a reasonable explanation is offered by the party concerned seeking amendment in the pleadings.
11. In the light of the above facts and circumstances, the impugned order is hereby set aside and the matter is remitted back to the trial court to pass a fresh order after considering the entire aspects including the explanation offered by the petitioner for the delay in filing the amendment application and the objections taken by the respondents/plaintiffs and the other defendants. The trial court shall be at liberty to impose a reasonable cost upon the petitioner in the event it allows the amendment sought for by the petitioner. The decision on the above issue, in the light of the above directions, must be taken by the trial court within a period of one month from the date of filing of the certified copy of this order by either of the parties.
(D.G.R. Patnaik, J.) Birendra/