NARENDRA NATH TIWARI, J. - (1.) THE petitioner, in this writ application, has prayed for setting aside the order dated 20.12.2005, passed by Additional District Judge, Fast Track Court, Koderma in Title Appeal No. 1 of 1991, whereby the amendment sought for in the plaint has been rejected.
(2.) THE petitioner is a transferee pendente lite. The suit property has been transferred in his favour after the judgment and decree of the trial court and during the pendency of the appeal, by virtue of deed of gift dated 7.12.1990. The sole respondent died during the pendency of the appeal. The appellant filed an application for substitution and the respondent -petitioner filed an application for his addition/substitution as a transferee to the sole respondent. Petitioner's application was allowed and he was made respondent. Subsequently, the appellants (respondents herein) filed an application, praying for amendment in the memorandum of appeal for brining on record the fact that in favour of petitioner the deed of gift was executed after the judgment and decree. That amendment was allowed and the fact of execution of deed of gift in favour of petitioner was brought on record. The petitioner then filed an application praying for amendment in the plaint as follows: 16(a) That schedule A of the plaint is the Khas Mahal building lease hold land which in terms of the lease can not be transferred without the permission of the lessor, the State of Bihar (at present the State of Jharkhand), who on being approached by Mosomat Gulab Kuwari, the competent authority of the Sate of Bihar, through the then District Magistrate, Hazaribagh granted permission to said Gulab Kuwari, the original plaintiff, whose order was conveyed by the Additional Collector as officer in -charge of the Khas Mahal department of the office of the Deputy Commissioner, Hazaribagh as conveyed vide memo No. 219, dated 30.11.1990 addressed to the original plaintiff Gulab Kuwari after the disposal of the suit. Thereafter original plaintiff Gulab Kuwari by a registered deed No. 9940 executed and registered on 7.12.1990 the proposed deed of gift in favour of the petitioner Bhagwan Das Verma. 16(b) That the original plaintiff died on 19.9.1992 during the pendency of the appeal and since your petitioners by a petition has been joined as a respondent No. 2 on 13.9.1991. The said appellants contested the said petition by filing a rejoinder. By the impugned order, learned court below has rejected the petitioner's petition for amendment in the plaint holding that the amendment, if allowed, shall change the nature and vitiate the trial before the court below.
(3.) MR . V. Shivnath, learned senior counsel appearing on behalf of the petitioner submitted that by praying the said amendment, the petitioner just wanted to bring in the plaint what has been brought on record in the memo of appeal by the appellants -respondents themselves, that is facts relating to permission from the Khas Mahal for execution of the deed of gift, and the death of the original plaintiff on 19.9.1992, during the pendency of appeal and his addition/substitution as respondent No. 2. Learned Counsel submitted that from perusal of the petition for amendment, it would be evident that nothing new or surprising is sought to be brought by the petitioner, rather the said facts are already on record, which were brought by the appellants themselves by amending their memo of appeal. It has been submitted that since the execution of deed of gift is an admitted fact and the petitioner has not sought any change in the relief on the basis of the said fact, as he is a subsequent transferee, no fresh controversy would arise if the proposed amendment in the plaint is allowed. Learned Counsel submitted that the learned court below has erroneously held that if the amendment is allowed, it would change the nature and character of the suit or it would totally vitiate the trial before the court below.;