Jharkhand High Court
Unknown vs Gayatri Devi Joshi on 17 September, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:28599
IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 965 of 2022
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1(a) Hema Sharma, wife of Late Ved Prakash Sharma, resident of House No.170, Ward No.21, Kachari Road, near Barnwal Sewa Sadan, Deoghar, Jharkhand 1(b) Nikita Sharma, daughter of Late Ved Prakash Sharma, resident of House No.138, Netajee Road (Court Road), in front of Barnwal Sewa Sadan, Ward No.21, Deoghar, Jharkhand 1(c) Kumar Nihal, son of Late Ved Prakash Sharma, resident of House No.138, Netajee Road (Court Road), in front of Barnwal Sewa Sadan, Ward No.21, Deoghar, Jharkhand 1(d) Tanishq, daughter of Late Ved Prakash Sharma, resident of House No.138, Netajee Road (Court Road), in front of Barnwal Sewa Sadan, Ward No.21, Deoghar, Jharkhand .... .... .... Petitioners Versus
1. Gayatri Devi Joshi, wife of Sri Kailash Joshi, resident of 340 Cha, Khunipur, Sahebganj, P.O., P.S., Sub Division & District Gorakhpur, U.P.
2. Ranjana Gupta, wife of Shri Sushil Kumar Gupta
3. Swapna Gupta, wife of Shri Anand Kumar Both are resident of Village and P.O. Rohini, P.S. Jasidih, Sub Division and District Deoghar (Jharkhand) .... .... .... Opposite Parties CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners : Mr. Prashant Pallav, Advocate Mr. Bajrang Kumar, Advocate For the Opp. Parties : Mr. Atanu Banerjee, Advocate Mr. Naresh Pd. Thakur, Advocate Mr. Suman Kumar Ghosh, Advocate Order No.13 / Dated :17.09.2025 Petitioners are the defendants and the instant civil miscellaneous petition has been filed for quashing the order dated 16.11.2022 passed in Title (Partition) Suit No.218 of 2015 and also for quashing the order dated 16.11.2022 passed in the Original Suit No.132 of 2018, whereby and whereunder the petition for amendment in the counter claim has only been partially allowed.
2. Petitioner is aggrieved by the rejection of the following amendments: -
I. That after completion of para 7, the said lines to be added. 'But the suit property is a dwelling house, as per declaration in the purported Sale Deed No.389/13, dated 18.03.2012, in the joint name of the defendant and his sister, Gayatri Devi Joshi, to whom, being necessary/proper party, she has not 1 2025:JHHC:28599 been added, as party in the suit and which is serious laches and lacunas in the part of the plaintiffs. And thus, their suit is bound to fail on this score in the nature of the suit. And not only this, the said Gayatri Devi Joshi, whenever comes at Deoghar, she stays in the suit property, and accordingly, the suit of the plaintiffs is not maintainable under facts and law both for all intent and purposes."
II. That such as, in Para 8 of the written statement dated 04.05.2016, in the 8th line, between word 'Pre-emption preferential, the word 'and' to be added in the 10th line, the plaintiff to be readover 'Plaintiffs' and in the 12th line the word 'would' to be added in between the words 'she sell'. III. That such as, in para 9 of the written statement in the fourth line, the word 'undevided' to be deleted, and in its place, the word 'Specific' to be added. And in the fifth line, the word 'Plaintiff' to be readover 'Plaintiffs'. And in the same line, after words 'Plaintiff' and before full stop (.), the said words to be added "and it will be apparent and evident from perusal of the alleged purported Sale Deed of the year 2013, dated 18/03/2013, and accordingly, the instant suit is not maintainable on the basis."
IV. That one more para, as No. (16), to be added, "That on behalf of this defendant the right kept reserve to file any amended and/or additional written statement, as and when, the exigency will arise for the same". Further, Defendant is also aggrieved on the following amendments proposed in the counter claim petition being refused: -
V. That after completion of para 7 of the plaint, the said lines to be added, "But subsequently, she betrayed from her promise and assurance, and silently, she sold the specific half area of the suit property, which is itself illegal and wrong to the strangers to the suit property in all respect, for which, she was not entitled under law being only joint purchaser due to love and affection and being own sister of the plaintiff/counter claimant/defendant." VI. That such as, in para 8 of the plaint the 6th (sixth) line to be deleted and in its place, the said line to be mentioned "the specific area in the suit property, by metes and bounds."
VII. That the relief No.II, in para 14, to be deleted and in its place, the said relief to be added "for that a decree to be passed for cancellation of the illegal and purported sale deed of the defendant 2nd party bearing Deed No.389/13, dated 18.03.2013, by refunding the sale consideration amount of the suit property for its 1/2 area (half area) in favour of the defendant 2nd party, by the defendant 1st party, and on its deposit by the plaintiff, as per the order and direction of the respective learned court, and for which, the plaintiff is always got ready, and thereafter, the defendant 1st party, as earstwhile owneress, Smt. Gayatri Devi Joshi to be ordered and directed to execute and register the sale deed of the half portion of the suit property as described in the Schedule of the plaint, on receiving the consideration amount, as deposited by the plaintiff/counter claimant/defendant, as per order of the respective learned court i.e. Rs.3,50,000/- (Rupees Three lacs and fifty thousand), failing which, the respective learned court be executed and registered the desired sale deed as mentioned above in favour of the plaintiff and/or his nominee/nominees, through process of the court."
3. Plaintiffs filed the suit for Eight Anna share in the suit property which has been detailed in the Schedule of the plaint. The Schedule property, 2 2025:JHHC:28599 as per the plaint is Basouri land total area 517 Sq. Ft. over which a shop room exists, shown in the map annexed with the said sale deed dated 18.03.2013, Holding No.553 in Mouza Shyamganj, District Deoghar.
4. The facts are not in dispute. The suit property was jointly purchased in the name of petitioner and his sister, Gayatri Devi Joshi. The present plaintiffs/opposite parties purchased the share of Gayatri Devi Joshi by way of registered sale deed dated 18.03.2013 and the present suit has been filed for partition and demarcation of the share of the plaintiffs.
5. Defendants have contested the claim on the ground as disclosed in the written statement under Section 44 of the Transfer of Property Act, and counter claim was also filed on the same day i.e. filing of the written statement, claimed a right of pre-emption over the said property.
6. Aforementioned proposed amendments have been rejected by the learned trial court vide order dated 16.11.2022, by a cryptic order that it will change the nature of the suit.
7. It is submitted by the learned counsel on behalf of petitioners/defendants/counter claimants that the amendment is only clarificatory in nature, as in the written statement also right of pre-emption had been taken which is founded on the grounds that the property in question was a dwelling house. In the written statement, proposed word 'dwelling house' was not used and in order to clarify the same, it has been specifically averred in the counter claim that in the said property, the petitioner was residing.
8. It is argued by the learned counsel on behalf of the plaintiffs that the word 'dwelling house' is conspicuously absent in the written statement, and there is no pleading that the property in question was dwelling house. In this view of matter there is no denial in the written statement that the area concerned was a commercial space with a shop in it. It is also argued that the amendment petitions have been filed at the belated stage after framing the issue and the proposed amendments will change the nature of the suit and will also amount to withdraw the admission regarding the nature of property.
9. Law is settled that liberal principles which guide the exercise of discretion in allowing amendments are the multiplicity of proceedings 3 2025:JHHC:28599 should be avoided, that amendment which do not alter the character of an action should be readily granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretense of amendment. Where there is delay, and absence of due diligence, the court will put all expenses upon the party seeking amendment. The principles to kept in mind while considering an amendment petition has been laid down succinctly in Life Insurance Corporation of India Vs. Sanjeev Builders Pvt, Ltd. & Another, 2022 SCC On Line SC 1128 "18. It is well settled that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. It is also equally well settled that there is no absolute rule that in every case where a relief is barred because of limitation, amendment should not be allowed. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub- serve the ultimate cause of justice and avoid further litigation.
25. The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. (See South Konkan Distilleries v. Prabhakar Gajanan Naik, (2008) 14 SCC 632)"
10. Here in the present case, written statement and counter claim were filed on the same day, and therefore, they need to be conjointly read. In the original written statement at para-7, plea of defence under Section 44 of the Transfer of Property Act has been taken and right of preemption has been 4 2025:JHHC:28599 raised. In the counter claim at para 5, it has been specifically pleaded that the defendant was residing in the suit property which was a dwelling house.
11. In this view of matter, it cannot be said that pleadings are completely bereft of the plea that suit property was a dwelling house.
12. The argument that suit property was a shop and not a dwelling house as deposed by the witness on behalf of the defendant, cannot be considered at this stage. Whether the schedule property was a dwelling house or not is a triable issue and a finding can be returned only after evidence are led on behalf of both sides.
13. For the present, it is difficult to agree with the argument advanced that there was an admission on the part of the defendant that the suit property was a shop and the proposed amendment shall amount to the withdrawal of the said admission. Learned trial Court appears to have partly dismissed the amendment petition without assigning cogent reason for the same. So far amendment No.IV in the written statement is concerned, that is uncalled for and therefore, it has been rightly rejected.
14. The order impugned with respect to the other proposed amendments in written statement and counterclaim is concerned is without any sufficient cause, and is accordingly not sustainable.
Civil Miscellaneous Petition is accordingly allowed. Pending Interlocutory Application, if any, is disposed of.
(Gautam Kumar Choudhary, J.) 17.09.2025 Anit 5