amendement of plaint adding some more properties after passing preliminary decree can be allowed - so many preliminary decrees can be passed in partition suit.
Background of the Case
The petitioners were the plaintiffs in Partition Suit No. 16 of 2007, which was decreed on March 31, 2010. A preliminary decree was drawn based on the property schedule in the original plaint.
After the preliminary decree, the petitioners sought to amend the schedule of the plaint to include seven additional plots under Khata No. 6 (later stated as 36 or 37 plots under Khata No. 96 in the arguments section) that were not originally mentioned. This amendment petition was rejected by the Trial Court, leading to the filing of the present writ petition.
Petitioners' Arguments for Amendment
The land sought to be included was recorded as joint property in both cadastral and revisional survey records of rights.
The amendment is typographical in nature and will not affect the merits of the case.
Amendment is permissible at any stage, and there can be **more than one preliminary decree in partition suits, citing Supreme Court judgments (2005 (13) SCC 89, AIR 1971 SC 1081, 2007 SAR (Civil) 929, AIR 2011 SC (Civil) 2716) and a Patna High Court judgment (AIR 1999 Patna 18).
Specific averments in paras 8 to 11 of the original plaint stated that the land in Khata No. 96 was joint family property, and this was not denied in the written statement, only the share of parties in this Khata was disputed.
Respondents' Arguments Against Amendment
The amendment was sought at a belated stage after the preliminary decree was drawn, without sufficient reason for the delay.
The original suit was for 6.75 acres under Khata No. 96, and the amendment seeks to include 37 more plots of the same Khata, increasing the schedule property to 10.84 acres**.
The plaintiffs were aware of these plots but did not exercise due diligence to include them earlier.
Inclusion of these plots would change the nature and character of the suit.
A similar prayer for amendment after the preliminary decree was rejected by a Co-ordinate Bench of the same High Court in W.P. (C) No. 1586 of 2019.
Part of the suit property had already been sold by the plaintiffs-petitioners.
Court's Decision and Reasoning
Justice Gautam Kumar Choudhary, after considering the submissions, observed the following:
There was an inordinate delay in filing the amendment petition.
The proviso to Order 6 Rule 17 of the CPC states that no amendment should be allowed after the trial has commenced unless the party shows due diligence.
The Court acknowledged that **more than one preliminary decree can be granted in partition suits, and non-inclusion of the entire joint family property could lead to a partial partition, which is generally not permissible. The Court cited **Phoolchand v. Gopal Lal, 1967 SCC OnLine SC 266, which supports the possibility of multiple preliminary decrees in partition suits.
However, the Court emphasized that amendment petitions have been rejected in cases of delay, referencing Mahavir Prasad v. Ratan Lal, (2009) 15 SCC 61.
In the present case, the facts sought to be incorporated were within the petitioners' knowledge at the time of filing the original suit in 2007. It was not a case of subsequent development.
* Allowing the amendment at such a belated stage, without any proper reason for the delay, would go against the statutory provision that bars amendments at a delayed stage.
Conclusion
The High Court found "no merit" in the writ petition and "dismissed it", along with any pending interlocutory applications. The petitioners' request to amend the schedule of the plaint after the preliminary decree was therefore rejected.
2025:JHHC:16089
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 1039 of 2016
1(a) Dharmbir Kumar
1(b) Sahju Kumar
Both sons of Late Doman Mahto, R/o Village Pundag, P.S.-Jagarnathpur, Dist.-
Ranchi
1(c) Usha Devi, W/o Sri Dilip Mahto, D/o Late Doman Mahto, R/o Village
Malsaring, P.S. Pithoria, Dist.-Ranchi
1(d) Pushpa Devi, W/o Sri Dilip Mahto, D/o Late Doman Mahto, R/o Village
Khunti, P.S. Khunti, Dist.-Khunti
2(a) Kaushalaya Devi, W/o Late Saibu Mahto
2(b) Micky Kumari, D/o Late Saibu Mahto
2(c) Ravi Kumar, S/o Late Saibu Mahto
All residents of Village Pundag, P.S.-Jagarnathpur, Dist.- Ranchi
..... .... Petitioners
Versus
1. Kanahai Sahu
2. Ramsagar Sahu
3. Sushila Devi, W/o Late Ram Kumar Sahu
3(a) Nitesh Kumar (Minor)
3(b) Nilesh Kumar (Minor)
All residents to village Pundag, P.S.-Jagarnathpur, Dist.- Ranchi
4. Most. Munni Devi, W/o Late Rambrit Sahu
5. Sukra Mahto @ Lohra Mahto, S/o Late Nanhu Mahto
6. Sukar Teli, S/o Maharuwa Teli @ Jharuwa Teli
7. (a) Funia Devi, W/o Late Shivcharan Teli, R/o Village-Pundag, P.O. & P.S.
Jagarnathpur, District-Ranchi
7(b)Phulo Devi, W/o Sahadar Mahot, D/o Late Shivcharan Teli, R/o Birbanda,
Namkum, P.O.-Lali-Ranchi
7(c)Ful Kumari Devi, W/o Jethan Mato, D/o Late Shivcharan Teli, R/o Village
Khijri, P.O.- Gudzora, P.S. Khunti, District-Khunti, Jharkhand
7(d)Shyam Devi, W/o Sanoj Sahu, D/o Late Shivcharan Teli, R/o village Tungri
Tola, P.S.-Burmu, P.O.-Chakme, District- Ranchi
8. Jogendra Mahto Village Pundag, P.S.-Jagarnathpur, Dist.- Ranchi
8(a) Paro Devi, W/o Texi Mahto, R/o Village-Malsirin, P.S.-Pithoria, Ranchi
8(b) Tijo Devi, W/o Sri Govind Mahto, R/o village Kuitaitu, Namkum, Ranchi
9. Banes Teli, S/o Dukhana Teli
10. Bhudhan Devi, W/o Late Pusuwa Teli
10(a) Shyamsundar Mahto, S/o Late Pusuwa Teli
10(b) Seema Devi, W/o Late Suresh Mahto
10(c) Shiv Kumar, S/o Late Suresh Mahto
10(d) Sandhya Kumari
10(e) Bidya Kumari Both D/o Late Suresh Mahto
All residents of village Kuitiatu, Namkum, Ranchi
11. Ramprabhu Teli, S/o Late Dhuruva Teli
12. Lakhan Teli, S/o Late Dhurva Teli
All residents of village Pundag, P.O. & P.S. Jagarnathpur, District-Ranchi
13. Sukermani Devi, W/o Panchu Sahu, R/o Village-Sugnu, P.S. Sadar, P.O.-
G.P.O., District-Ranchi
2025:JHHC:16089
14. Pokwa Devi, W/o Indru Teli, D/o Kenhaiy Teli, R/o village-Murhu, P.S.
Burmu, Dist.-Ranchi
15. Churwa Devi, W/o Sri Amin Sahu, R/o village Sahhan, P.O. & P.S. Argora,
District-Ranchi
… …. Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioners : Mr. Bhaiya V. Kumar, Advocate
For the Respondents : Mr. Mahesh Tewari, Advocate
: Mr. K.K. Ambastha, Advocate
------
Order No. 23 / Dated : 17.06.2025.
1. The petitioners are plaintiffs whose Partition Suit No. 16 of 2007 was
decreed vide judgment dated 31.03.2010 and it attained finality as no appeal
was preferred against it.
2. On the basis of the schedule of property, as mentioned in the plaint,
preliminary decree was drawn.
3. Petitioners moved the learned Trial Court for amendment in schedule of
the plaint for including some seven plots under Khata No. 6 which were not
mentioned in the schedule of the plaint. The petition for amendment was
rejected against which the present writ petition has been filed.
4. It is submitted by the learned counsel appearing on behalf of the
petitioners that the land, which was sought to be included, was recorded in
the cadastral survey record of rights as joint property and also in the revisional
survey record of rights. In the counter affidavit filed by the respondents to the
petition for amendment, it was not a joint family property. Despite this,
petition for amendment has been rejected. It is argued that the amendment,
sought to be made, is typographical in nature which will not affect the merit
of case and is permissible at any stage in view of the ratio laid down by the
Apex Court in 2005 (13) SCC 89 and AIR 1971 SC 1081 in which it has been
laid down that there can be more than one preliminary decree. Reliance is
also placed on 2007 SAR (Civil) 929 Supreme Court, AIR 2011 SC (Civil)
2716, AIR 1999 Patna 18 and 2021 (4) JBCJ 288.
5. It is further submitted that there are specific averments in paras-8 to 11 of
the plaint that the land pertaining to Khata No. 96 was joint family property
and these averments have not been denied in the written statement, and the
2025:JHHC:16089
denial is regarding the share of the parties of this khata.
6. Learned counsel for the respondents-defendants has contested the claim
for amendment on the ground that the same has been filed at a belated stage
after the preliminary decree has been drawn, without assigning any reason for
it. Laches on the part of counsel cannot be accepted as sufficient ground for
the delay in preferring the amendment petition. It is submitted that the
partition suit in this case was filed in the year 2007 and the judgment was
delivered in 2010. After the judgment having been delivered the preliminary
decree was drawn, petition for amendment in the schedule of plaint to include
36 more plots under Khata No. 96 has been filed.
7. It is further submitted that originally the suit was filed for a decree of
partition with respect to 6.75 acres of land under Khata No. 96 and by the
instant amendment 37 plots of the same Khata is sought to be included
increasing the schedule property to 10. 84 acres. The plaintiffs–petitioners
were totally aware of these plots but despite this, they did not exercise due
diligence to bring these plots in the schedule and at a belated stage, the instant
writ petition has been filed.
8. It is contended that inclusion of these plots will change the nature and
character of the suit. In a similar case ordered by the Co-ordinate Bench of
this Court in W.P. (C) No. 1586 of 2019, the prayer for amendment in the
Schedule-‘A’ of the plaint after preparation of the preliminary decree for
partition has been rejected. It is argued that part of the suit property has been
sold out by the plaintiffs-petitioners.
9. Having considered the submissions advanced on behalf of both sides, it is
apparent that there is an inordinate delay in preferring the amendment
petition. Proviso to O 6 R 17 reads as under:
Provided that no application for amendment shall be allowed after the trial
has commenced, unless the Court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter before the
commencement of trial.
10. There is merit in the plea of the petitioners that there are instances of
amendment of preliminary decree even in partition suit and the prospect of
amendment of preliminary decree is not altogether foreclosed.
A partition suit must be deemed to be pending till a final decree is actually
granted. It is the duty of the court in a partition suit to adjudicate upon the
2025:JHHC:16089
claims of all the parties who claim a share in the subject-matter of the suit.
Otherwise, it would lead to endless anomalies and complications. Noninclusion of the entire joint family property shall amount to partial partition
for which a decree cannot be granted. Law is settled that in
a partition action, more than one preliminary decree can be granted
particularly in partition suit. It has been held in Phoolchand v. Gopal Lal,
1967 SCC OnLine SC 266 : (1967) 3 SCR 153 :
“We are of opinion that there is nothing in the Code of Civil Procedure
which prohibits the passing of more than one preliminary decree if
circumstances justify the same and that it may be necessary to do so
particularly in partition suits when after the preliminary decree some
parties die and shares of other parties are thereby augmented. We have
already said that it is not disputed that in partition suits the court can do so
even after the preliminary decree is passed. It would in our opinion be
convenient to the court and advantageous to the parties, specially in
partition suits, to have disputed rights finally settled and specification of
shares in the preliminary decree varied before a final decree is prepared”.
However, in cases of delay, amendment petition has been rejected. Such a
delayed application was rejected in Mahavir Prasad v. Ratan Lal, (2009)
15 SCC 61.
11. In the present case there is no reason whatsoever for not bringing the
amendment petition during the pendency of suit. The facts that are sought
to be incorporated at this stage was within the knowledge of the Petitioner
at the time of filing of the suit. It is not a case of subsequent development
necessitating amendment. In the absence of any reason to allow the petition
at this stage will amount to jettison the statutory provision that bars
amendment petition at belated stage. Amendment of the schedule even at
this stage would have been possible, if none had contested the inclusion of
the property in the schedule.
Under the circumstance, I do not find any merit in the present writ
petition which accordingly stands dismissed.
Pending I.A., if any also stands dismissed.
(Gautam Kumar Choudhary, J.)
Pawan/ -