1 2025:CGHC:39805 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 773 of 2025 1 - Devnarayan Sinha S/o Late Lakhan Lal, Aged About 73 Years R/o Village Arjuni Tahsil And District Dhamtari (C.G.) ... Petitioner(s) versus 1 - Tikaram Gajendra S/o Late Lakhan Lal Gajendra, Resident And Farmer Village Gadadih, Post Bhakhara, Tahsil Kurud, Presently At Office Of Senior Agriculture Officer, Jagdalpur, District Bastar (C.G.) 2 - State Of Chhattisgarh Through The Collector, District Dhamtari (C.G.) 3 - Derhin Bai, D/o Late Lakhan Lal, W/o Shri Shyamlal Sinha, Aged About 75 Years R/o Village Thanod, Tahsil And District Durg (C.G.) 4 - Kamla Bai D/o Late Lakhan Lal, W/o Shri Premlal Lahra, Aged About 71 Years R/o Village Bagdonri, Tahsil Charama, District Kanker (C.G.) ... Respondent(s) For Petitioner/Plaintiff : Mr.B.P. Sharma, Advocate along with Mr. Karunendra Narayan Singh, Advocate For State : Mr. Vedant Shadangi, Panel Lawyer Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board 08.08.2025 1. The petitioner has filed this petition seeking the following relief(s):- -2- “10.1 A writ and/or an order in the nature of writ of appropriate nature do issue calling the relevant records pertaining to case of the petitioner from the Court concerned for its kind perusal. 10.2 A writ and/or an order in the nature of writ of appropriate nature do issue quashing the order dated 18.7.2025 (Annexure P-1) passed in Civil Appeal No.21A/2024 by learned 2nd Additional Judge to the Court of learned District Judge Dhamtari District Dhamtari being perverse and not sustainable in law and in effect allow the applications rejected by the impugned order in the facts and circumstances of the case. 10.3 Cost of the proceedings. 10.4 Any other writs & directions that may be deemed fit and just in the facts & circumstances of case.” 2. The facts of the present case are that the petitioner/plaintiff filed a suit for declaration of title, partition and injunction in respect of the lands situated in three different villages and also for entitlement of compensation in respect of the land acquired in land acquisition case No.11A/82, year 2015-16. 3. The defendants filed their written statement. Learned Trial Court framed issues and Civil suit No.38A/2017 was dismissed by the learned First Additional Judge to the learned Civil Judge, Class-II, Dhamtari, vide judgment and decree dated 18.03.2024. 4. The petitioner herein preferred a regular appeal against the judgment and decree dated 18.03.2024. In the pending appeal, the petitioner moved an application under Order 41 Rule 27 and Order 6 Rule 17 of CPC. 3 5. In the application moved under Order 6 Rule 17 of the CPC, the petitioner pleaded that during the pendency of the appeal, the appellant got certain documents regarding the conferment of Bhumiswami rights over properties situated at Village Gadadih, and it was stated that in the suit for partition, all properties have to be included. It is also pleaded that if the details of the entire property are not given in the suit for partition, it would amount to a waiver of right, and the second suit cannot be presented seeking partition. 6. Respondent No.1/defendant No.1 filed a reply to the application moved under Order 6 Rule 17 of CPC, wherein it is stated that the parties to the lis entered into a compromise in Civil Suit No.11A/1988 on 14.07.1988, and the properties mentioned in the application for amendment have already been partitioned according to the compromise decree. It is also stated that the proposed amendment would change the nature of the suit. 7. Learned Appellate Court vide order dated 18.07.2025 held that the proposed amendment would change the nature of the suit, and it would bring the suit to its initial stage. It is also observed that the application for amendment has been moved at a belated stage, particularly before the Appellate Court. It is also stated that the petitioner has not assigned reasons as to why such application was not moved before the learned Trial Court. -4- 8. Mr. Sharma, the learned counsel appearing for the petitioner, would argue that the petitioner moved an application under Order 41 Rule 27 of CPC whereby certain documents describing details of the ancestral properties, which are not part of the suit property, were produced. He would further submit that the application under Order 41 Rule 27 of CPC is still pending consideration before the Appellate court. He would contend that the application under Order 6 Rule 17 of CPC was also moved, describing the nature of documents filed under Order 41 Rule 27 of CPC. He would further contend that the entire ancestral property has not been included in the suit, and no separate suit can be filed for partition, and it would be deemed that the parties have waived their rights with regard to those properties if the entire property is not included. He would also submit that the rejection of the application under Order 6 Rule 17 of CPC would amount to the rejection of the application under Order 41 Rule 27 of CPC as the documents which have been produced along with the application under Order 41 Rule 27 of CPC, have been elaborated in the application filed under Order 41 Rule 27 of CPC. In support of his contentions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Vasantha Vs. Rajlakshmi, 2024 (5) SCC 282, wherein it is held that the amendment of the plaint can be made at any stage of the suit, even at the second appellate stage. He would pray to set aside the order passed by the learned Court below. 5 9. On the other hand, Mr. Shadangi, learned Panel Lawyer appearing for the State, would oppose the submissions made by Mr. Sharma. 10.Heard counsel for the parties and perused the documents present on the record. 11.A suit filed by the petitioner for declaration of title, partition, injunction and entitlement over the compensation was dismissed by the learned Trial Court vide judgment and decree dated 18.03.2024. The petitioner preferred a regular appeal, which is still pending consideration. In the pending appeal, the petitioner moved two applications; first, under Order 41 Rule 27 of CPC and another under Order 6 Rule 17 of CPC. The application moved under Order 41 Rule 27 of CPC is still pending consideration. 12.Learned Appellate Court rejected the application moved under Order 6 Rule 17 of CPC. 13.In the application moved under Order 6 Rule 17 of CPC, the petitioner proposed an amendment claiming therein a half share of lands and houses situated in Village Gadadih, which are not part of the suit property. 14.It is also stated that the properties which have not been included in the suit for partition cannot be included later for partition, and it would be deemed that the parties have waived their rights. It is also pleaded that the subsequent suit for partition of the rest of the property would not be maintainable. -6- 15.Learned counsel appearing for the petitioner has argued that the rejection of the application moved under Order 6 Rule 17 of CPC would amount to a deemed rejection of Order 41 Rule 27 of CPC. 16.Order 41 Rule 27 of CPC deals with the appellate Court’s power to admit additional evidence. If the parties specify exceptional circumstances, the appellate court may allow such a party to produce additional evidence that was not presented during the trial Court proceeding. The party seeking to adduce additional evidence must demonstrate that, despite due diligence, evidence could not be produced earlier, whereas Order 6 Rule 17 of CPC deals with the amendment of pleadings. It empowers courts to allow either party to alter or amend their pleadings at any stage of the proceeding, provided the amendments are necessary to determine the real questions in controversy between the parties. 17.In the present case, in the application moved under Order 6 Rule 17 of CPC, the petitioner has stated that he got the necessary documents during the pendency of the appeal, and those documents have been filed along with the application under Order 41 Rule 27 of CPC. But the petitioner has not stated when the petitioner found those documents. The petitioner was required to demonstrate the reason why those documents were not produced before the learned Trial Court and how the documents would not change the nature of the suit. The petitioner has also suppressed 7 the fact that earlier, a compromise decree was passed between the parties in Civil Suit No.11A/1988. 18.It is a well-settled principle of law that the application for amendment of pleadings can be allowed at the appellate stage. 19.The Hon’ble Supreme Court in the matter of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and another, 2022 (16) SCC 1, while dealing with the provisions of Order 6 Rule 17 of CPC, held that the prayer for amendment can be allowed if it is required for effective and proper adjudication of the controversy between the parties to avoid the multiplicity of proceedings, provided the amendment does not result in injustice to the other side; the amendment does not raise a time-barred claim. It is further held that if the amendment changes the nature of the suit or it is malafide, it should not be allowed. Relevant paras 71.3, 71.3.1, 71.3.2, 71.4.1, 71.4.2, 71.4.3 and 71.4.4 are reproduced herein below:- “71.3 The prayer for amendment is to be allowed. 71.3.1 if the amendment is required for effective and proper adjudication of the controversy between the parties, 71.3.2 To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). -8- 71.4.1 By the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, 71.4.2 the amendment changes the nature of the suit, 71.4.3 the prayer for amendment is malafide, or 71.4.4 by the amendment, the other side loses a valid defence.” 20.In the present case, the petitioner has not explained the relevance of the documents. The petitioner has not disclosed the date when those documents were obtained, and it is also not disclosed from whose custody those documents were acquired. Further, the proposed amendment would change the entire nature of the case because the petitioner has proposed to include the new suit property, which was not part of the suit property before the learned Trial Court, and it would bring the suit at its initial stage. 21.Considering the above-discussed facts and the law laid down by the Hon’ble Supreme Court, in my opinion, the learned Court below has rightly rejected the application. 22.Accordingly, this petition fails and is hereby dismissed. No cost(s). Sd/- (Rakesh Mohan Pandey) Judge Rekha