Patna High Court - Orders
Smt.Savitri Devi vs Smt.Kamla Sinha & Ors on 23 July, 2014
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.11739 of 2010
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Smt.Savitri Devi W/O Sri Ashok Kumar Khatri R/O Moh North Patel
Nagar, Gokul Path, Near Bridge (Nalapar), P.S.Patliputra, Distt-Patna
.... .... Petitioner.
Versus
Smt.Kamla Sinha & Ors
.... .... Respondents.
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Appearance :
For the Petitioner/s : Mr. Surendra Nath
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
6 23-07-2014Heard learned counsel for the petitioner, learned counsel for the private respondents as well as learned counsel, appearing for the State.
The petitioner has prayed for quashing the order dated 09-02-2010 passed by learned Sub Judge-IV, Patna in Title Suit No. 539 of 2007 by which and whereunder, he rejected the petition, filed on behalf of the petitioner under Order 6 rule 17 of the Civil Procedure Code.
The petitioner filed Title Suit No. 539 of 2007 against private respondents and the State, claiming her easementary right on plot No. 1220 and the description of the disputed land was given by the petitioner in her plaint but subsequently, she filed a petition under Order 6 rule 17 CPC, praying therein to permit her to amend the length of the disputed plot but learned Sub Judge-IV, Patna High Court CWJC No.11739 of 2010 (6) dt.23-07-2014 2/4 Patna rejected the prayer of the petitioner on the ground that the amendment, as sought by the petitioner, would change the nature of the suit.
Learned counsel, appearing for the petitioner submits that originally, the petitioner claimed her easemerntary right on the disputed plot and gave width and length of that plot as 20 feet and 40 feet respectively but in course of recording evidence, it came to light that the length of aforesaid disputed plot is 65 feet and thereafter, the petitioner filed amendment petition for amending the length of the disputed plot. It is submitted by learned counsel for the petitioner that the amendment, as sought by the petitioner, does not change the nature of the suit because the petitioner is claiming only her easementary right on the disputed plot.
On the other hand, learned counsel, appearing for private respondents submits that the learned court below rightly rejected the amendment petition of the petitioner because if, the petitioner is permitted to amend the description of the disputed plot, the same would change the nature of the suit. It is also contended by him that on the disputed plot, there are several houses, constructed by different persons and any amendment, permitted to be made in the plaint, would cause prejudice to the Patna High Court CWJC No.11739 of 2010 (6) dt.23-07-2014 3/4 persons, who constructed houses on the disputed plot.
Learned counsel, appearing for the State submits that according to the plaintiff's case, the disputed plot is Gair Majarua land and in course of recording evidence, one witness was examined on behalf of the State and the said witness stated that the disputed plot is being used by local people of the vicinity as passage since long.
Having heard the contentions of the parties, I went through the record.
Admittedly, the disputed plot is recorded in revenue record as Gair Majarua land and according to the State, the aforesaid land is being used by common people as "RASTA" since long and moreover, the petitioner has only grievance against private respondents that they are creating hurdle in using the disputed plot as "RASTA" and, therefore, even if, the description of the disputed plot is changed by the amendment, as sought by the petitioner, in my opinion, the nature of suit does not change because of the fact that the petitioner is only claiming her easementary right on the disputed plot. Therefore, in my view, the learned Sub Judge-IV, Patna has committed error in rejecting the amendment petition as contained in Annexure-2 to this petition.
Accordingly, this writ petition stands allowed and Patna High Court CWJC No.11739 of 2010 (6) dt.23-07-2014 4/4 impugned order dated 09-02-2010 passed by Sub Jude-IV, Patna in Title Suit No. 539 of 2007 is, hereby, quashed and in result, the amendment petition as contained in Annexure-2 to this petition is allowed and the learned trial court is directed to permit the petitioner to make necessary amendment in her plaint in accordance with law.
The stay, granted by this court vide order dated 13-09- 2012 stands vacated and the court below is directed to proceed with the case in accordance with law and try to dispose off the same as early as possible.
(Hemant Kumar Srivastava, J) A.K.V./-
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