IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.12493 of 2010
1. SATYA NARAYAN RAI S/O LATE MAHAVIR RAI R/O
RAJNAGAR SATGHARA, P.O.- RAJNAGAR, P.S.- RAJNAGAR,
DISTT.- MADHUBANI (BIHAR)
2. ARUN KUMAR RAI @ ARUN RAI S/O LATE BILTU RAI @
BHAGWAN RAI R/O RAJNAGAR SATGHARA, P.O.-
RAJNAGAR, P.S.- RAJNAGAR, DISTT.- MADHUBANI
(BIHAR).
--DEFENDANT NOS.1 & 2-PETITIONERS.
Versus
1. SRI VISHWANATH SHARRAF
2. SRI BALKRISHNA PRASAD SHARRAF
3. SRI OM PRAKASH SHARRAF
4. SRI PURUSHOTTAM SHARRAF
ALL ARE SONS OF LATE RADHA BALLABH PRASAD
SHARRAF R/O RAJNAGAR SATGHARA, P.O.- RAJNAGAR,
P.S.- RAJNAGAR, DISTT.- MADHUBANI.
... PLAINTIFFS-RESPONDENTS 1ST PARTY.
5. SRI PRADEEP RAI S/O LATE BILTU RAI @ BHAGWAN RAI
6. SRI PANKAJ RAI S/O LATE BILTU RAI @ BHAGWAN RAI
7. SRI BIPIN RAI S/O LATE BILTU RAI @ BHAGWAN RAI
8. MOST. SHANTI DEVI W/O LATE BILTU RAI @ BHAGWAN
RAI
ALL ARE RESIDENTS OF RAJNAGAR SATGHARA, P.O.-
RAJNAGAR, P.S.- RAJNAGAR, DISTT.- MADHUBANI.
... DEFENDANT NOS. 3 TO 6-RESPONDENTS 2ND PARTY.
9. LEELA DEVI D/O LATE BILTU RAI @ BHAGWAN RAI
10. MANJU DEVI D/O LATE BILTU RAI @ BHAGWAN RAI
11. BABY KUMARI D/O LATE BILTU RAI @ BHAGWAN RAI
12. NITU KUMARI D/O LATE BILTU RAI @ BHAGWAN RAI
13. NEELU KUMARI D/O LATE BILTU RAI @ BHAGWAN RAI
14. MOHAN RAI S/O LATE SHIVJI RAI
15. PRAMOD RAI S/O LATE SHIVJI RAI
16. NAWAL KISHORE RAI S/O LATE SHIVJI RAI
17. GHANSHYAM RAI S/O LATE SHIVJI RAI
18. SANJU KUMARI D/O LATE SHIVJI RAI
19. MOST. RAMESHWARI DEVI W/O LATE RAM PRATAP RAI @
LAXMAN RAI
20. RAGHUNATH RAI S/O LATE RAM PRATAP RAI @ LAXMAN
RAI
21. JAGANNATH RAI S/O LATE RAM PRATAP RAI @ LAXMAN
RAI
ALL AT SL. NOS. 9 TO 21 ARE RESIDENTS OF RAJNAGAR
SATGHARA, P.O.- RAJNAGAR, P.S.- RAJNAGAR, DISTT.-
MADHUBANI.
22. DURGA DEVI D/O LATE RAM PRATAP RAI @ LAXMAN RAI
R/O VILL.- MADHEPUR, P.S.- MADHEPUR, DISTT.-
MADHUBANI.
23. HEERA DEVI D/O LATE RAM PRATAP RAI @ LAXMAN RAI
R/O VILL.- KANTE, P.S.- BASOPATTI, DISTT.- MADHUBANI.
...ADDED DEFENDANT NOS. 7 TO 21- RESPONENT 3RD PARTY.
-2-
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For the petitioners : Mr. Shashi Nath Jha, Advocate.
For the respondents : None.
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03/ 29.09.2010 Heard learned counsel for the petitioners.
2. This petition has been filed by the petitioners
challenging order dated 29.10.2010 (Annexure-7) by which Sub-
ordinate Judge-III, Madhubani allowed the application of plaintiffs
(respondent nos. 1-4) for amendment of their plaint of Title Suit
No.128 of 2005 as well as of their written statement filed against
the counter claim of defendant nos. 1 and 2 (writ petitioners).
3. Learned counsel for the petitioners raises three
points. The first point is that the amendments were sought by the
plaintiffs (respondent nos. 1 to 4) after issues were framed in the
suit and there was no explanation for delay as required under the
provision of amended Rule 17 of Order VI of the Code of Civil
Procedure. The second point raised by learned counsel for the
petitioner is that amendment sought would change the nature of the
suit as now the plaintiffs are claiming on the basis of adjustment.
The third point raised by the defendants-petitioners is that written
statement had earlier been filed by the defendants and now the
witnesses have also been examined and the suit is pending for
arguments.
4. So far the first point raised by learned counsel for
the petitioners is concerned, admittedly the evidence in the suit had
not started and the hearing of the suit was to commence when the
said application was filed and hence the defendants had full and
-3-
proper opportunity to file additional written statement with regard
to the amendments sought by the plaintiffs and to support their
pleadings by evidence which were yet to be produced. Hence, the
said objection of the defendants-petitioners is not legal and proper.
5. So far the second point raised by learned counsel for
the petitioners is concerned, the plaintiffs had been claiming the
same property, but had only sought to add the ground of
adjustment. The court has to see that all the facts which are
necessary for full and final adjudication of the suit must come on
record and hence the amendments sought by the plaintiffs were
necessary for that purpose. Accordingly, the second ground taken
by the petitioners also fails.
6. So far the third point raised by learned counsel for
the petitioners is concerned, it is quite apparent that after the
application for amendment was allowed by the plaintiffs, the
witnesses were examined by both the parties as per the amended
claim of the plaintiffs either in their plaint or in their written
statement to the counter claim of the defendants and the suit is
pending for arguments on the said amended pleadings and
evidence, hence there is no occasion for any interference with the
said matter.
7. Accordingly, this court does not find any illegality
or jurisdictional error in the impugned order of the trial court, nor
does it find any merit in this writ petition which is, accordingly,
dismissed.
Sunil (S. N. Hussain, J.)