- (1.) CHALLENGE in this writ application is to the order dated -14.09.2007, passed by the Sub -Judge IV, Koderma in Title Suit No. 188 of 1986, whereby the petition filed by the petitioner (substituted defendant of the original defendant No. 12) under Order VI Rule 17 of the Code of Civil Procedure for amendment of the original written statements, was rejected.
(2.) THE grounds of rejection of the petitioner's prayer for amendment of the written statement were as follows: - (i) That the prayer for amendment was made at a very belated stage at the fag end of the final arguments. (ii) The proposed amendment sought for, in the opinion of the trial court, seeks to displace the plaintiff's case completely. (iii) By the appellate order by which the case was remanded to the trial court, the only issue which was to be decided by the trial court was the Issue No. VI. For better appreciation, of the controversy raised in the pleadings in this writ application and in the light of the reliefs claimed, a brief statement of facts relating to the case would be necessary: - The plaintiffs' Basudeo Ram and others had filed the suit before the court below seeking partition of the Joint Family properties mentioned in the Schedule of the plaint. The defendant No. 12, Most. Cheetni @ Jitni had filed her written statements in the suit, declaring her no objection if the decree is granted in favour of the plaintiff for the reliefs claimed. By referring to the genealogical table, it was mentioned in the written statement of Most. Cheetni @ Jitni that her father, Tilak Ram had two wives, namely, Bandhani and Rukni. The defendant No.12, Most. Cheetni @ Jitni and her brother, Khemchand were born from the first wife, namely, Bandhani. Khemchand died issueless and after his death, his wife deserted him and subsequently re -married. From the second wife, namely, Rukni Devi, Karu Ram @ Dharma was born. Subsequently, both the wives of Tilak Ram, namely, Bandhani and Rukni died. After the death of Tilak Ram, his son Karu Ram @ Dharma inherited the share and interest of his father over the suit properties and after the death of Karu Ram, the present plaintiffs have inherited to the extent of one -fifth share over the suit properties. It was also acknowledged that the suit properties are joint and that there has been no partition by metes and bounds. A preliminary decree was passed by the trial court on the basis of the pleadings filed by the original defendant in the plaint as also in the written statement, filed by the original defendant No. 12, declaring 1/10th share of the defendants, i.e. half of one -fifth share of Tilak Ram in the suit lands. Being dissatisfied, the plaintiff filed an Appeal against the preliminary decree. During the pendency of the Appeal, the original defendant No. 12, Most Cheetni died and in her place, the petitioner Ashok Rajak, being her son and legal representative, was substituted. The appellate court remanded the suit back to the trial court for deciding issue No. VI. After the substitution of his name in place of the deceased -defendant, Cheetni, the present petitioner Ashok Rajak filed a fresh written statement and had also filed an amendment petition seeking amendment of the original written statement of Most. Cheetni under Order VI Rule 17 of the Code of Civil Procedure. The proposed amendment sought for was to introduce the statement of fact that after the death of Tilak Ram, his son Karu Ram alongwith daughter Most. Cheetni @ Jitni (defendant No. 12) had jointly inherited the suit properties from their father, Tilak Ram.
(3.) LEARNED counsel for the petitioner submits that the amendments sought for, were in fact formal in nature and by no stretch of imagination, could the same be conceived as altering the nature of the suit or causing any prejudice either to the plaintiff or to the defendants. In fact, the amendment sought for are part of the admitted case of the plaintiffs themselves.;