Hasmuddin Shah And ORS v. Akbar Shah And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.4386 of 2016 ====================================================== 1.

Hasmuddin Shah and Ors Son of Late Afzal Shah 2.

Hasnain Shah, Son of Late Afzal Shah, 3.

Bibi Samima, Wife of Amirullah All are resident of village- Kael Tola, Malik Tola, Pragana Bara, P.S.- Barharia, P.O.- Kaligarh, District- Siwan ... ... Petitioner/s

Versus

1.

Akbar Shah Son of Late Rahwat Sah 2.

Lalmuni Begum, Wife of Moquim Shah 3.

Bibi Salama, Wife of Late Yainuddin 4.

Mustaquim 5.

Zaiyun 6.

Tunni 7.

Rehana 8.

Sahena Respondents No. 4 to 8 are Sons and Daughter of Late Yainuddin 9.

Bibi Sakina, Wife of Yainuddin Shah 10.

Vizae Shah 11.

Mannu Shah 12.

Prem Khatoon 13.

Bebi 14.

Sangam Respondents No. 10 to 14 are son and Daughter of Mainuddin Shah 15.

Mainuddin Shah 16.

Saffiuddin Shah 17.

Nizamuddin Shah Respondents No. 15 to 17 are Son of Late Mokim Shah 18.

Bibi Hasibun, Daughter of Mokim Shah null 19.

Israil Shah, Son of Late Hakim Shah 20.

Bibi Yainul, Daughter of Late Khalil Shah 21.

Noor Alam 22.

Manzar Alam Respondent No. 21 & 22 are son of Late Khalil Shah 23.

Khairu Nisa, Wife of Quasim Shah 24.

Bibi Ashama, wife of Salauddin Shah 25.

Harendra Singh 26.

Narendra Singh 27.

Manoj Singh 28.

Babita Devi 29.

Name not Known Respondent No. 25 to 29 are Son & Daughter of Late Santosh Singh 30.

Bibi Bahiddin, Wife of Khudaddin Shah 31.

Asgar Ali 32.

Alam Ali

2/4 33.

Akhtar Ali 34.

Shamim Ali 35.

Hamaza Khatoon 36.

Zamila Khatoon Respondent No. 32 to 36 are Son & Daughter of Late Zahiruddin Shah 37.

Nasaruddin Shah, Son of Late Khudaddin Shah 38.

Zamila Khatoon, Wife of Gulasan 39.

Mahrun Misa, Wife of Tasarim 40.

Nasaruddin Shah, wife of Ali Raza Shah 41.

Esrail Shah, Son of Nabab Shah 42.

Hazir Shah 43.

Tazir Shah 44.

Lamuni Misa 45.

Salmuni Misa 46.

Nazmuni Nisa Respondents No. 42 to 46 are Son and Daughter of Late Baharan Shah All of the above respondents are resident of village- Kailtola Malik Tola, P.s.- Barharia, P.O.- Kaligarh, District- Siwan ... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Ranjeet Kumar Mr. Ayush Kumar For the Respondent/s :

Mr. Waliur Rahman ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL ORDER 29-03-2024 Heard Mr. Ranjeet Kumar, learned counsel for the petitioners and Mr. Wali-ur Rahman, learned counsel appearing for the Respondents.

2. In a Title Suit instituted in the year 1986, the evidence of the plaintiffs was closed. The last witness for the defendants was being examined. At that stage an amendment application was filed by the defendants. From the reading of the amendment petition, it appears that the defendants want to bring a number of amendments including the change in the genealogy.

3/4 The amendment petition has been allowed by the Court below.

3. Learned counsel for the petitioners has submitted that new facts are sought to be brought on record and in the last stage of the suit which will prejudice the petitioners and the court below has held that the facts which are being brought by filing an amendment petition was already in the knowledge of the defendants at the time of filing of the written statement, but still the amendment application has been allowed.

4. Mr. Wali-ur Rahman, learned counsel appearing on behalf of the Respondents has submitted that the amendment can be allowed at any stage of a suit or at the stage of second appeal and merely because there was delay in filing the amendment petition, the amendment petition should not be dismissed.

5. He has also submitted that he will not lead any evidence and trial will not be a de novo trial and he is ready to forgo the amendment so far as it relates to the genealogical table.

6. I have considered the submissions of the parties.

7. The amendment sought for/proposed by the defendants has been brought at the fag end of the case when the last witness of the defendants was being examined. It is not in

4/4 dispute that the facts were in the knowledge of the defendants at the time of filing of the written statement. It is also not in dispute that the Title Suit is of the year 1986 and after thirty years, the amendment petition was filed which has been allowed.

8. In my opinion, such amendments which are being filed after thirty years of filing of the suit and at the fag end of the suit when the last witness was being examined on behalf of the defendants, he is not bonafide but malafide and these kind of amendments are only filed with an intention to delay the disposal of the suit.

9. In view of the discussions above, this application is allowed.

The order dated 27.01.2016 passed in Title Suit No. 160 of 1986 is quashed.

10. The Sub-Judge concerned hearing the Title Suit No. 160 of 1986 is directed to conclude the hearing of the Suit within three months from the date of receipt/communication of a copy of this order. It will proceed ex parte against the noncooperating party. (Sandeep Kumar, J) Saif/- U