IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.73 of 2007
YOGENDRA SINGH @ GHORA SINGH & ANR.
Versus
CHITRALEKHA DEVI
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4 10/7/2008 Heard counsel for the petitioners.
Petitioners are aggrieved by order dated
22.12.2006 refusing amendment in the written
statement.
Counsel for the petitioners has submitted
that whatever amendment were proposed in the
written statement as detailed in the Schedule-A
application seeking amendment were formal in
nature and in any event did not change nature of
the suit which still remained out and out a
partition suit. In this context, he has submitted
that either measurement of the land by Bigha,
Katha or Dhur, or the description of dimensions
thereof can never change nature of the suit. He
further submits that for this amendment which were
formal in nature, no further evidence is required
and therefore approach of the court below in
rejecting the application for amendment was wholly
vitiated in law, both by material irregularity as
also an error of jurisdiction.
There being no opposition to such
submission of the counsel for the petitioners, in
as much as, the sole opposite party, the
plaintiff, even after service of notice has not
chosen to appear, this Court finds merit in the
aforesaid submission of counsel for the
petitioners. The court below in fact has curiously
come to a finding that on account of change of
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measurement of land and/or description thereof,
nature of suit would change. The impugned order is
obviously vitiated by error of jurisdiction and as
such cannot be sustained. Accordingly, the
impugned order is set aside.
It is, however, made clear, as has been
rightly conceded by the counsel for the
petitioner, that after effecting amendments no
further evidence will be required and the court
can proceed to conclude hearing and deliver
judgment. This Court would accordingly direct the
court below to incorporate the amendment in
written statement and proceed ahead in accordance
with law.
In the result this application is allowed
with the aforementioned observations and
directions.
( Mihir Kumar Jha, J.)
Abhay Kumar