2025:JHHC:24281 IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 267 of 2025 ------ 1. Kistu Prasad Yadav alias Kistu Yadav, S/o Late Kailu Mahto, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar 2. Ramdhari Mahto alias Ramdhari Prasad Yadav, son of Kistu Prasad Yadav, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar 3. Arun Yadav alias Arun Kumar Yadav, son of Kistu Prasad Yadav, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar .... .... …. Petitioners Versus 1 (a) Sanjay Kumar Yadav, son of Late Sahdeo Prasad Yadav 1 (b) Bijay Kumar Yadav, son of Late Sahdeo Prasad Yadav All residents of Village Chandpur, P.O. & P.S. Jasidih, and District Deoghar 2. Sridhar Yadav, son of Late Kailu Mahto, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar 3. Amarnath Yadav, son of Sridhar Yadav, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar 4. Shaligram Yadav, son of Budhan Mahto, resident of Village Simrakhas, P.O. and P.S. Jasidih, Sub Division and District Deoghar 5. Umesh Chandra Yadav, son of Budhan Mahto, resident of Village Simrakhas, P.O. and P.S. Jasidih, Sub Division and District Deoghar 6. Hina Devi, wife of Mohan Yadav, resident of Village Bariyaradih, P.O. and P.S. Jasidih, Sub Division and District Deoghar 7. Kanti Devi, wife of Nandu Yadav, resident of Village Bariyaradih, P.O. and P.S. Jasidih, Sub Division and District Deoghar 8. Rambha Devi, wife of Chintamani Yadav, resident of Village Bariyaradih, P.O. and P.S. Jasidih, Sub Division and District Deoghar 9. Sudama Devi, wife of Pati Yadav, resident of Nakato, P.S. Chaikai, District Jamui, Bihar 10. Jira Devi, wife of Late Sumeshwar Yadav, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar 11. Shibu Yadav, son of Late Sumeshwar Yadav, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar 12. Sagar Yadav, son of Late Sumeshwar Yadav, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar 13. Nuema Devi, wife of Kedar Yadav, resident of Village Basmpat, P.O. and P.S. Deoghar, District Deoghar 14. Bhagia Devi, wife of Pyarelal Rout, resident of Village Kalyanpur, P.O. and P.S. Deoghar, District Deoghar 15. Bina Devi, daughter of Late Jamuna Mahto, wife of Shankar Yadav, Village Herojara, P.O. Chuabagh, District Munger, Bihar 16. Manju Devi, wife of Gyanchandra Yadav, P.O. Adampur, P.S. Bhagalpur, District Bhagalpur 17. Usha Devi, daughter of Late Jamuna Mahto, wife of Naresh Yadav, resident of Village Bampas Town, P.O. and P.S. Kunda, Deoghar 18. Ganesh Ranjan Yadav, son of Late Jamuna Mahto, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and 2025:JHHC:24281 District Deoghar 19. Gautam Yadav, son of Late Guru Mahto, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar 20. Jilabi Devi, daughter of Late Guru Mahto, wife of Ramdeo Yadav, resident of P.O. and P.S. Jasidih, Sub Division and District Deoghar 21. Rita Devi, daughter of Late Guru Mahto, wife of Thakur Yadav, resident of Village Tehaniya, P.S. Kunda, Deoghar 22. Bimla Devi, daughter of Late Guru Mahto, wife of Girija Yadav, resident of Village Jhariyagarhi, P.S. and District Giridih 23. Shanti Devi, daughter of Late Guru Mahto, wife of Gurucharan Mahto, resident of Village Gidhaya, P.O. and P.S. Jasidih, Sub Division and District Deoghar 24. Kari Devi, wife of Late Guru Mahto, wife of Bhim Yadav, resident of Village Basmata, P.O. and P.S. Jasidih, Sub Division and District Deoghar 25. Sato Devi, daughter of Late Guru Mahto, wife of Anup Yadav, resident of Village Chandpur, P.O. and P.S. Jasidih, Sub Division and District Deoghar .... .... .... Opposite Parties CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners : Mr. Prashant Pallav, Advocate For the Opp. Parties : Mr. Arvind Kumar Choudhary, Advocate Order No.08 / Dated : 18.08.2025 Defendant no.1 is before this Court against the order dated 25th November, 2024 passed in O.S. Case No.113 of 2005, whereby and whereunder, the amendment petition filed by the plaintiff has been allowed. 2. Plaintiff filed a partition suit in 2005 in which written statement was filed in 2006 and after evidence of plaintiff and defendants were closed, the amendment petition as Miscellaneous Application No. 543/2023 was filed on 27.09.2023 which has been allowed to incorporate the following amendments: I. That in page no.11, para 8 of the plaint in 3rd line, after word sister and “three sons” may be deleted and its place “two sons” may be inserted. II. That in page 11, para 8 in 6th line after word his, “two” word may be allowed to be amended in the plaint. III. That in page no.13, para 14 of the plaint, it has wrongly been typed 1/25th share may be deleted and in its’ place, 1/24th share may be inserted in the plaint. 3. The above amendments were pleaded on the ground that Kistu Prasad Yadav was adopted by one Titiya Mahatwain in 1956. Therefore, 2025:JHHC:24281 Kistu Prasad Yadav (petitioner no. 1) and his sons (petitioner nos. 2 and 3) had no share in the joint family property. 4. On this ground, the amendment petition has been allowed reducing the share to “two sons” only. 5. It is argued by learned counsel for the petitioners that Kistu Prasad Yadav had been given in adoption is a new plea which will change the nature of the present partition suit. On earlier occasion, no such plea was taken in the plaint and the land had been allotted on the basis of a Panchnama Batwara dated 04.06.1977 and 16.06.1977. This is a new case set up at the stage of final argument, as there is no reference to the said adoption in the plaint. Further, the requirement of due diligence having been exercised has not been pleaded, therefore, it is also barred under Proviso to Order VI Rule 17 of CPC. Reliance is placed on Basavaraj Vs. Indira and Others, (2024) 3 SCC 705. 6. It is argued by learned counsel for the plaintiffs that the parties claiming share in the joint family property need to be a coparcener, is a fundamental requirement in a partition suit. There is no denial in the rejoinder that defendant no. 1/ petitioner no. 1 was adopted son of Titiya Mahatwain. As a matter of fact, he had also received compensation for the land acquired in the name of Titiya Mahatwain claiming himself to be her adopted son. 7. Having considered the submissions advanced on behalf of both sides, it is apparent that the main ground of challenge is that the amendment is sought to be introduced at the fag end of the trial at the stage of argument, without any explanation for the delay. This is a partition suit and the relationship, save and except adoption, is not in dispute. It does not stand to reason that an adoption that took place way back in 1956, came to the knowledge of the plaintiffs for the first time at the stage of argument. There is no reason whatsoever, to show that the factum of adoption was not within the cognizance of the plaintiff, at the time of filing of the case or before the issues were settled. If such an amendment is permitted at the fag end without any explanation, Proviso to Order VI Rule 17 shall be rendered nugatory. It is true that this provision is directory and not mandatory in nature, but it does not mean that amendment can be allowed at any stage 2025:JHHC:24281 without any explanation for the delay. The nature of amendments are not formal, but goes to the root of the matter thereby depriving the petitioners share in the joint family property. Therefore, it was all the more necessary that the amendment should have been brought within the stipulated time, or there should have been some cogent reason for the delay. It shall be relevant to note the law as laid down by the Apex Court in Atcom Technologies Ltd. v. Y.A. Chunawala & Co., (2018) 6 SCC 639 : 20. This provision has come up for interpretation before this Court in number of cases. No doubt, the words “shall not be later than ninety days” do not take away the power of the court to accept written statement beyond that time and it is also held that the nature of the provision is procedural and it is not a part of substantive law. At the same time, this Court has also mandated that time can be extended only in exceptionally hard cases. We would like to reproduce the following discussion from Salem Advocate Bar Assn. (2) v. Union of India [Salem Advocate Bar Assn. (2) v. Union of India, (2005) 6 SCC 344] : (SCC p. 364, para 21) “21. … There is no restriction in Order 8 Rule 10 that after expiry of ninety days, further time cannot be granted. The court has wide power to “make such order in relation to the suit as it thinks fit”. Clearly, therefore, the provision of Order 8 Rule 1 providing for the upper limit of 90 days to file written statement is directory. Having said so, we wish to make it clear that the order extending time to file written statement cannot be made in routine. The time can be extended only in exceptionally hard cases. While extending time, it has to be borne in mind that the legislature has fixed the upper time-limit of 90 days. The discretion of the court to extend the time shall not be so frequently and routinely exercised so as to nullify the period fixed by Order 8 Rule 1.” 8. Under the circumstance and the reasons discussed above, the impugned order is not sustainable and is accordingly set aside. This Civil Miscellaneous Petition is allowed. Pending Interlocutory Application, if any, stands disposed of. (Gautam Kumar Choudhary, J.) Anit