Patna High Court
Awadhendra Prasad Narayan Singh And ... vs Raghubansmani Prasad Narayan Singh And ... on 16 March, 1978
Equivalent citations: AIR1979PAT50, 1978(26)BLJR835, AIR 1979 PATNA 50, 1978 BLJR 835, (1978) BLJ 713, (1978) PAT LJR 654
ORDER Birendra Prasad Sinha, J.
1. This application in revision is by some of the defendants in a partition suit. In 1941 the petitioners and opposite party Nos. 1 and 2 filed Title Partition Suit No. 23 of 1941 at Gaya, against the Raja Bahadur and the Rani of Amawan Estate and others, for division of the joint family properties. One of the properties in the suit was a house at Rajgir. Raja Bahadur Harihar Prasad Narayan Singh, the owner of Amawan Raj, had five sons, Raghubansmani Prasad Narayan Singh, Raghavendra Prasad Narayan Singh, Awadhendra Prasad Narayan Singh, Kaushalendra Prasad Narayan Singh and Awadheshwari Prasad Narayan Singh. The latter three are petitioners in this application and were plaintiffs in Title Partition Suit No. 23 of 1941, along with the other two, Raghubansmani Prasad Narayan Singh and Raghavendra Prasad Narayan Singh. The Raja Bahadur and his wife Rani Bhuvaneshwari Kuer were defendants along with some others. In that suit, the parties entered into a compromise and on 5-9-43 a decree in terms of the said compromise was passed. One of the terms of the compromise was that the plaintiffs, viz., the five sons, and the defendants, viz., the Raja Bahadur and the Rani Sahaba, will have equal shares in the said house at Rajgir, but it will not be partitioned by metes and bounds so long as the Raja Bahadur and the Rani Saheba remained alive. On the 19th Feb. 1951, the Raja Bahadur died. A few months later, i.e., on the 28th Sept. 1951, Rajkumar Raghubansmani Prasad Narayan Singh (opposite party No. 1) filed a partition suit at Patna which was registered as Title Partition Suit No. 90 of 1951, In this suit, he impleaded the Rani Saheba and his other four brothers as defendants. The petitioners, as stated above, are defendants Nos. 3 to 5 in the present suit.
2. The case of the plaintiff-opposite party No. 1 is that under the terms of the compromise a preliminary decree dated the 21st March, 1942, followed by a final decree dated the 5th Sept. 1943, was passed by the Subordinate Judge, III, Gaya, in the said Title Partition Suit No. 23 of 1941. According to the terms of the said compromise, the properties set out in Schedules 1 and 2 of the plaint in the present suit were left undivided, in which the plaintiff's share had been fixed as one-seventh. The Rajgir house was obviously not included in this suit because the Rani Saheba was still alive. The personal properties allotted to the late Raja Bahadur were described in Schedules 3 to 5, which were also sought to be partitioned. A preliminary decree was passed in the suit on the 12th Sept. 1958, and a pleader commissioner was appointed to divide the properties, who later submitted report on the 21st January, 1965. On the 16th Dec. 1967, the Rani Saheba also died, thus, making the Rajgir house divisible by metes and bounds between the brothers, as per decree in the earlier partition suit of 1941. On the 19th Sept. 1973, the learned Subordinate Judge II, Patna, ordered that the properties in the suit be partitioned amongst the brothers, each getting one-fifth share therein. This order, however, was passed by agreement of all the parties. On the 22nd Nov. 1973, the petitioners filed a petition before the court below for a direction to the pleader commissioner to include the Rajgir house also for partition and to the plaintiff to deposit the entire rent up to date in court, the plaintiff being in possession of the said house. The plaintiff-opposite party No. 1 objected. He admitted that the Rajgir house was a joint family property which had become liable for partition after the death of the Raja Bahadur and the Rani Saheba but since the same was not included in the plaint or in the preliminary decree of the present suit, such a direction could not be given to the pleader commissioner. The court below considered this matter and held that the Rajgir house could not be included for partition in the present suit. It is against this order that the petitioners have come up to this Court in revision.
3. Shri Sudhir Chandra Ghose, learned counsel appearing on behalf of the petitioners, submitted that the plaint of the present suit should be interpreted to include also the Rajgir house. He further submitted that the court must look to the subsequent events and, in the interest of justice as also to avoid multiplicity of suits and to shorten the litigation between the brothers, include the Rajgir house also in the present suit. According to him Section 153 of the Code of Civil Procedure empowers the court itself to make all necessary amendments for the purpose. Shri Ghose relied upon the decisions in L. Guran Ditta v. T.R. Ditta (AIR 1935 PC 12) and Mukunda Lal Chakrabarty v. Jogesh Chandra Chakrabarty, 1 Pat LJ 393 : (AIR 1916 Pat 347) and some other cases. None of these cases really came to the aid of the petitioners.
4. It is unfortunate that this litigation between the brothers has been continuing for several decades. When the case was heard by me for some time, I suggested that the parties should amicably settle the matter. The case was also adjourned for a few days but unfortunately no settlement could be arrived at. Shri Tara Kant Jha appearing for the plaintiff-opposite party No. 1, submitted that since the Rajgir house was not a subject-matter of the present suit, it cannot be divided in the present proceeding. He stated that his client was not prepared to include the Rajgir house in the present proceeding by asking for an amendment.
5. A preliminary decree has also been passed in the present suit. A suit ordinarily means a Civil proceeding instituted by the presentation of the plaint. The Rajgir house is, admittedly, not mentioned in the plaint of the present suit. Obviously, it could not form part of the preliminary decree. A decree is a formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any matter in controversy in the suit. A preliminary decree is only a step in the pending suit and the suit continues until the final decree is passed. An application can be made even after a preliminary decree for amendment of the plaint for partition claiming augmented share as a result of the death of the applicant's father. So far as the Rajgir house in concerned, the dispute regarding it had been adjudicated upon between the parties in the previous partition suit of 1941. In fact, nothing remained to be decided between the parties and its division by metes and bounds was only conditional upon the death of the Raja Bahadur and the Rani Saheba. The question is whether such a property can be included in the present suit after the preliminary decree has been passed. Many of the properties which were sub-ject-matter of the earlier suit, and which remained joint under the terms of the compromise referred to above, are subject-matter of the present suit. In respect of the Rajgir house the share of the parties had been defined in the earlier suit but by agreement it was left to be divided by metes and bounds after the death of the Raja Bahadur and the Rani Saheba.
6. Order 6, Rule 17 of the C.P.C. provides for amendment of pleadings. According to this rule, the Court may at any stage of the proceedings allow either party to alter or amend his pleadings and all such amendment shall be made as may be necessary for determining the real question in controversy between the parties. The plaint, therefore, can be amended only at the instance of the plaintiff and for the purpose of determining the questions in controversy between the parties. This means that an amendment which will change the nature of the suit cannot be allowed. As stated earlier, the plaintiff, opposite party No. 1 is not prepared to ask for the amendment of his plaint; rather he is resisting. The petitioners, who are defendants to the suit, obviously, cannot ask for the amendment of the plaint. For this purpose, Order 6, Rule 16, also cannot come to the aid of the defendants inasmuch as it contemplates striking out or amending any matter in the pleadings of his opponent which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the suit. Under Section 152 of the Code, the Court may of its own motion or on the application of any of the parties correct any clerical or arithmetical error in judgments, decrees or orders, or errors arising therein from any accidental slip or omission. It is plain, therefore, that Section 152 also does not provide the answer to a situation like the present one. Section 153 of the Code clothes the court with a general power to amend any defect or error in any proceeding in a suit. It reads as under:
"The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or dependant on such a proceeding."
Shri Ghose has taken shelter under this provision and has submitted that in the ends of justice the Court must exercise its power under Section 153 of the Code. According to him, this will end the litigation between the brothers which has been continuing for decades. The object of the law permitting any amendment is to minimise litigation and to avoid multiplicity of proceedings. The Court's power to allow amendments for raising the real question at issue between the parties cannot be circumscribed by mere technicalities. The Court has to see that substantial justice is done to the parties and no party suffers any injury or injustice. In Jai Jai Ram Monohar Lal v. National Building Material Supply, Gurgaon (AIR 1969 SC 1267), it was held (at p. 1269):
"Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side."
It was also held that in a proper case a Civil Court could permit an amendment of the plaint for determining the real question or issue between the parties. A Division Bench of the Andhra Pradesh in Somereddi Burrayya v. Somireddi Atchayyamma (AIR 1959 Andh Pra 26) held that the language of Section 153 was in wide terms and confers powers on a Court to correct errors in any proceeding at any stage in order to determine the real question and to render justice to the parties. In that case a preliminary decree had been passed in a partition suit and a commissioner had been appointed to partition the properties. Obstruction was offered so far as one item of the property was concerned. A petition was filed by the plaintiff for substituting another item of property which was opposed on the ground that the property sought to be substituted was not a joint family property but was the stridhan property of the defendant. The objection was overruled and the application was allowed. The Court held that Order 6, Rule 17 and Section 153 of the Code invested the court with the jurisdiction to allow an amendment even after the preliminary decree in proper cases and render justice to the parties.
7. The problem in the instant case, however, is different. The Rajgir house is, admittedly, not included in the plaint of the present suit and the plaintiff is not prepared to amend the plaint. The Court has no powers to include any property suo motu so as to change the nature of the suit. No authority has been placed before me to show that even without the plaintiff's asking for such an amendment the Court of its own or on the request of the defendants can include a property for partition which was not included in the plaint. However unreasonable the attitude of the plaintiff may be when the Court is not invested with any such power, a direction cannot be given to include the Rajgir property for partition in the present suit. The defendants will have to seek their remedy elsewhere. That being the position, this application has to fail.
8. In the result, this application is dismissed but there shall be no order as to costs.