- (1.) The present writ petition has been preferred under Article 227 of the Constitution of India against the order passed by the Sub Judge I, Daltonganj, District-Palamau, dated 1st October, 2007, in Title Suit No. 75 of 2004, below an application preferred by the original defendants under Order VI Rule 17 of the Civil Procedure Code, whereby, written statement was allowed to be amended and against this order which is at Annexure-1 to the memo of the present petition, the original plaintiff has preferred this writ petition.
(2.) Learned Counsel for the petitioner (original plaintiff) in Title Suit No. 75 of 2004, submitted that amendment application has been preferred, at a much belated stage and it changes the whole nature of the written statement, in as much as, a document of the Year, 1920, has been relied upon which is a fabricated document, as per the original plaintiffs. This aspect of the matter has not been properly appreciated by the Sub Judge I, Palamau, Daltonganj and, therefore, the impugned order deserves to be quashed and set aside.
(3.) Having heard learned Counsel for the petitioner and looking to the facts and circumstances of the case, I see no reason to entertain this writ petition mainly for the following facts and reasons: (i) it appears that the present petitioner is the original plaintiff who has instituted Title Suit No. 75 of 2004, on the basis of a registered sale-deed entered into between the present petitioner and Abdul Gaffar, son of Late Safi, who is Respondent No. 4 on 30th June, 1995. (ii) written statement was filed by the respondents, wherein, they have denied the title of the present petitioner (Original Plaintiff) and it has been stated in Paragraph 5 of the written statement that defendants are in peaceful possession of the entire suit property i.e. Plot No. 699 under khata No. 133 of Village-Japla Chube ad measuring 3.21 acres of land. (iii) it is also contended by the original defendants that they are in possession of the suit property in pursuance of a registered sale-deed of gift dated 24th March, 1972. It is also stated in Paragraph 11 that the description of the suit property in the plaint and in the so-called sale-deed in favour of the present petitioner are altogether different. Thus, the original plaintiffs are not the owner of the property, in question. It has been stated in the written statement that neither Abdul Gaffar nor Late. Safi was the owner of the suit property. In several paragraphs of the written statement and the sale-deed executed by Abdul Gafur in favour of the present petitioner does not give any right, title or interest to the original plaintiff in the suit property. It has been stated in Paragraph-17 of the written statement that even boundaries given in the so-called sale-deed is also not tallying. Looking to the amendment application preferred by the original defendants under Order VI Rule 17 of the Civil Procedure Code for amending the written statement, it appears that the following amendment is proposed to be brought in the written statement. Proposed Amendment. (1) After para No. 16 of the W/S a new para No. 16A be kindly added. That these defendants have constructed a tiled house consisting of two rooms and big Aagan covered by bricks wall over the partition over the suit plot No. 699 in which the defendant Mobin Ahmad alongwith his family member is residing the same but the entire property of these defendants are still joint. (2) In para No. 12 at page 3 in the eight line after Full stop the following be added. Md. Nabi had also executed a document in the Year 1920 by which he declared that he had no concern with the land of plot No. 699 and in fact Sk. Leyakat Hussain was in possession of land of Plot 699. In view of the aforesaid amendments, it cannot be said that there is a total departure from the written statement already filed by the original defendants. (iv) From the aforesaid amendment, it also cannot be said that a totally new case is being canvassed by the original defendants. On the contrary, looking to the proposed amendment whatever is already stated in the written statement is being narrated, in detail. This aspect of the matter has been properly appreciated by the trial court while passing the impugned order dated 1st October, 2007, at Annexure-1 to the memo of petition and also looking to the proposed amendment, it appears that it does not affect the very root of the case and will be necessary to be appreciated in the light of the evidences on record by the trial court for arriving at a correct decision of a dispute between the parties to the Title Suit. (v) Learned Counsel for the petitioner has further submitted that a document of the Year, 1920, presented by the original defendant is a fabricated document. This aspect of the matter has not been properly appreciated by the trial court. This contention is devoid of any merits. It ought to be kept in mind that whenever any amendment application is preferred under Order VI Rule 17 of the Civil Procedure Code, Court has not to check the merit of the said amendment, but, Court has to check whether by allowing such an amendment whether totally a new case is being pleaded by the party or whether there is a total departure from the earlier case or not. So far as the merit of the amendment is concerned, it can be decided only after amendment is allowed and evidence is being taken. (vi) Looking to the impugned order, passed by the Sub Judge I, Palamau, Daltonganj, dated 1st October, 2007 cost has also been awarded and plaintiff is also permitted to file additional evidence, if so desire. Thus, no prejudice is going to be caused to the original plaintiff. This aspect of the matter has also been appreciated by the trial court.;