Jharkhand High Court
G.E.L. Church Mecon Mandali vs Jowana Minz @ Jowan Mitra on 9 August, 2018
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 832 of 2018
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G.E.L. Church Mecon Mandali, Parastoli, South Office Para, Doranda, Post Doranda, PS-Doranda, District Ranchi through its President Joljes Ekka, son of Late Biraj Ekka, residing at Flat No. A-202, Arawali Apartment, South Office Para, Doranda, Post Doranda, PS-Doranda, District Ranchi .... ...... Petitioner Versus
1. Jowana Minz @ Jowan Mitra, wife of Asit Kumar Mitra and daughter of Late Naiman Minz, resident of 101, Pratibha Apartment, South Office Para, Doranda, Post Doranda, PS- Doranda, District Ranchi
2. Santosh Minz, son of Late Naiman Minz, resident of village Kadru, Sarna Toli, Post Argora, PS-Argora, District Ranchi .... ...... Respondents
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For the Petitioner : Mrs. Ritu Kumar, Adv.
Mr. S.B. Deo, Adv.
Mr. Vikash Kumar, Adv.
Ms. Shatakshi, Adv.
For Respondent No.1 : Mr. Shadab Eqbal, Adv.
Mr. Ajay Kumar Murarka, Adv.
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07/09.08.2018 The petitioner, which is plaintiff in Title Suit No.82 of
2013 is aggrieved of dismissal of its applications under
Order 7 Rule 14(3) CPC and under Order 6 Rule 17 CPC by the impugned order dated 18.08.2017.
2. Stand taken by the plaintiff is that amendment in the pleadings and leave to produce documents can be permitted at any stage of the suit.
3. Title Suit No.82 of 2013 was instituted by the 2 plaintiff- GEL Church for a decree for declaration of its easementary rights over the suit lands and to permit it to hold prayer and other religious functions over there and for permanently restraining the defendants from causing disturbance to enjoyment of the suit property by the plaintiff. The plaintiff has pleaded that the suit property ad- measuring about 3 decimals land under Khata No.34, Plot Nos.64 and 65 corresponding to New Plot No.36 situated at Mouza Hinoo, PS- Doranda, Thana No.225, District- Ranchi was allotted to Boas Tigga, Mangal Tigga, Henuk Tigga and Kristo Sahay Tigga by M/s Hindustan Steel Limited. They orally transferred the above land to Jowana Tigga, Dwarika Tigga, Kamala Tigga and Kumari Mariam Kujur and they had orally gifted the aforesaid land to the plaintiff. The suit property is adjacent to the Church, admeasuring an area of 5 decimals land under Khata No.34, Plot Nos.64 and 65 corresponding to New Plot No.01, situated at Mouza-Hinoo, P.S-Doranda, Thana No.225, District Ranchi. The aforesaid land was allotted to Masihdas Tigga by M/s Hindustan Steel Limited. The said Mashidas Tigga has also orally gifted the suit land to GEL Church. In the written statement the defendants have set- up a plea that the suit property was transferred by Masihdas Tigga to Naiman Minz for valuable consideration. One of the issues framed in the suit was whether by virtue of agreement to sale dated 16.12.1975 right, title or interest over the suit property was conveyed to Naiman Minz.
4. After issues were settled on 26.02.2016 and the plaintiff had 3 examined two witnesses, the aforesaid applications, both dated 03.07.2017 were filed.
5. Order 6 Rule 17 CPC confers powers upon the court to permit amendment in the suit at any stage of the proceedings, however, after a proviso was inserted in Rule 17 by the Code of Civil Procedure Amendment Act, 2002 a limitation on powers of the court to permit amendment has been provided. It provides that after the issues are settled amendment in the pleadings shall not be permitted. Fundamental test whether amendment in the pleadings shall be permitted or not is whether the proposed amendment is necessary for determining the real controversy involved in the suit. The suit instituted by the plaintiff is for a declaration of its easementary rights over the suit property. In the plaint parentage or religion of late Masihdas Tigga has not been disclosed by the plaintiff. By amendment the plaintiff intends to incorporate a new fact which was not initially pleaded by it in the plaint. Now, the plaintiff claims that Masihdas Tigga was Christian by religion. The proposed amendment seems to stem from the fact that the defendants have set-up a claim over the suit land through agreement to sale dated 16.12.1975. An amendment which would take the other party by surprise or cause serious prejudice to the other party or introduces altogether a new fact cannot be permitted. In fact, the plaintiff has not been able to cross the hurdles of proviso to Order 6 Rule 17 CPC. The documents which are sought to be produced through an application under Order 7 Rule 14(3) CPC are also not necessary for 4 adjudicating the real dispute involved in the suit, that is, whether the plaintiff has easementary rights over the suit property. There is no reference of these documents in the plaint; the documents mentioned in the application dated 03.07.2017 pertain to religion of late Masihdas Tigga.
6. In the above facts, finding no infirmity in the impugned order dated 18.08.2017, the writ petition is dismissed.
(Shree Chandrashekhar, J.) R.K.