Order of Sub-Judge, II, Dalsinghsarai quashed: Patna High Court

Patna High Court's bench Justice Sandeep Kumar quashed the order of  Sub-Judge, II, Dalsinghsarai, Samastipur in Bimal Kumar Dutta v. Dilip Kumar Chowdhary and others. This application was filed by the petitioner for quashing the order dated September 12, 2012 passed by the ub-Judge, II, Dalsinghsarai in Title Suit No. 93 of 2003 by which the Sub-Judge had allowed the amendment petition filed by the defendant under Order 6 Rule 17 read with Order 8 Rule 6(A) and Section 151 of the Code of Civil Procedure (CPC).

The Title Suit No. 93 of 2003 was filed by the plaintiff for correction of the mistake in the revisional survey. The defendants have appeared and filed their written statement and denied the claim of the plaintiff.On on July 17, 2009, the plaintiff had filed an amendment petition under Order 6 Rule 17 of the CPC for amendment of the plaint and it was submitted that due to typing error, some details have been left out to be typed in the plaint and the Court below by the impugned order had allowed the amendment.Following which the defendant No. 2, one of the ten defendants had filed an application for amendment in his written statement and he made a counter claim and to this claim, the defendant no. 2 wants the sale deed dated September 17, 1952 to be declared forged, fabricated and illegal and not binding upon the defendant and also prayed for eviction of the plaintiff from the Suit land and for recovery of possession.

The plaintiff filed a rejoinder and denied the claim of the defendant and it was contended by the plaintiff that if the proposed amendment is allowed then the nature of the suit will be changed and the defendant will have no right to raise his counter claim. Notably, the plaintiff pointed-out that except for defendant no. 2, no other defendant has raised any counter claim. The Court below allowed the application filed by the defendant no. 2 and thus, allowed the amendment as prayed for. 

The petitioner's counsel submitted that the amendments as prayed for by the defendant no. 2 should not have been allowed as the same changes the nature of the suit and the admissions made by the defendant no. 2 in his written statement are being withdrawn by the amendments.The counsel of defendant no. 2 supported the impugned order and has submitted that the amendments do not change the nature of the suit and the admissions are not being withdrawn but are being explained by the defendant no. 2. The defendant no. 2 has proposed the amendments in Paragraph No. 8, 10, 14, 15, 16, 19, 20, 22, 28, 30, 33, 36, 37, 38 of the written statements.  

The Court observed: "From the reading of the amendments proposed by the defendant no. 2, it appears that the admissions are being withdrawn by the defendant no. 2 and he is now making out a new case which in view of the law laid down by the Hon'ble Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited reported in AIR 2022 SC 4256 is not permissible. The amendments are not explanatory but the defendant no. 2 is making out a new case for withdrawing its earlier admissions which is not permissible in law."