Chanda Devi v. Kailash Bhardwaj And ORS

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.1417 of 2016 ====================================================== Chanda Devi .... .... Appellant/s

Versus

Kailash Bhardwaj & Ors .... .... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Gagan Deo Yadav For the Respondent/s : Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL ORDER 16-01-2017 Heard the learned counsel for the petitioner and the learned counsel for the respondent.

Perused the impugned order dated 10.08.2016 whereby the learned Sub Judge IIIrd, Madhubani has rejected the amendment application filed by the defendant in Title Suit No.223 of 2011. It appears that the plaintiff has examined two witnesses in the case and thereafter this amendment application has been filed by the defendant on 8.6.2016 praying for addition of a paragraph to the effect that three daughters of defendant No.2 are necessary party in the suit and because of their non-joinder, the suit shall fell (the name of three daughters have been given). The learned counsel for the petitioner submitted that the defendant-petitioners are not raising any new fact and the parentage of the three daughters is not disputed by the defendant in the reply to the application. The petitioners raised only

Patna High Court C.Misc. No.1417 of 2016 (3) dt.16-01-2017 2/3 question of law, i.e., non-joinder of party but the learned Court below has rejected the application under Proviso to Order 6 Rule 17 CPC.

On the other hand, the learned counsel for the respondent submitted that trial has commenced, therefore, the Court below has rightly rejected the amendment application. Admittedly, two witnesses have already been examined by the plaintiff and moreover the three persons named in the amendment application are admittedly the daughter of defendant No.2. Whether because of their non-joinder as party defendant, the suit shall fell or not is only a question of law and it is not a question of fact. The petitioners are raising this question of law by way of amendment and moreover the evidence of the petitioners is still going on as such I find that no prejudice will be caused to the plaintiff respondent, if this amendment is allowed The Hon'ble Supreme Court in the case of L. C. Hanumanthappa Vs. H.B.

Shiva Kumar (2016)1 SCC 332 has held that 'all amendments ought to be allowed which satisfy the two conditions : (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties.'

Patna High Court C.Misc. No.1417 of 2016 (3) dt.16-01-2017 3/3 manner not permitted by law and thereby refused to exercise a jurisdiction vested in it by law. Accordingly, the impugned order is set aside. The amendment application filed by the defendant petitioner is allowed.

Thus, this Civil Misc. application stands allowed. (Mungeshwar Sahoo, J) Sanjeev/- U T