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1979 DIGILAW 131 (ORI)

BHAMARA ALIAS BHRAMARA HATI v. KHETI BEWA

1979-10-16

P.K.MOHANTI

body1979
JUDGMENT : P.K. Mohanti, J. - The question whether a Court has jurisdiction to allow an amendment of the plaint schedule after preliminary decree is passed in a partition suit is the sole point for consideration in this Civil Revision. 2. Opposite parties 1 to 3, as Plaintiffs, brought Title Suit No. 192 of 1973 in the Court of the Sub-Judge, Cuttack, for partition of their half-share in the suit property and obtained a preliminary decree for partition. During the pendency of the final decree proceeding, they came up with a petition for adding some more properties to the plaint schedule by way of amendment on the ground that those are joint family properties liable for partition and were omitted from the plaint schedule by mistake. Defendants 2 to 4 filed counter contending that the properties sought to be added to the plaint schedule are not joint family properties and that they had acquired title to the same by adverse possession. The learned Additional Subordinate Judge having allowed the prayer for amendment, Defendants 2 to 4 have come up in revision. 3. Mr. B. Patnaik, the learned Counsel for the Petitioners straneously urged that after the preliminary decree is passed, the Court becomes functus officio and ceases jurisdiction to allow any amendment to the same. 4. The question whether the Court has jurisdiction to allow amendment of the plaint schedule after the preliminary decree is passed is to be determined with reference to Section 153 and Order 6, Rule 17, Code of Civil Procedure, Section 153, Code of Civil Procedure. Section 153, CPC reads as follows: The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the rear question or issue raised by or depending on such proceeding. Order 6, Rule 17, CPC reads thus: The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Order 6, Rule 17, CPC reads thus: The Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. The above provisions make it clear that so long as the Court is in seisin of the proceedings, it is competent for it to allow amendment of the pleading, provided it does not cause injustice to the other side. The object of the rule allowing amendments is to minimise litigation and avoid multiplicity of proceedings. Their Lordships of the Supreme Court In the case of Jai Jai Ram Manohar Lal Vs. National Building Material Supply Gurgaon observed as follows: ...Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. A partition suit is deemed to be pending till it reaches the stage of final decree and the rights of the parties have to be adjusted on the date of the final decree Vide AIR 1940 11 (Privy Council) . If the suit is pending at the stage of final decree, it is competent for the Court to allow amendment of the pleading. Even after a preliminary decree is passed, the suit for partition continues and it is only after passing of the final decree that the suit can be said to have been terminated. It is, therefore, open to the Court to amend the plaint and the preliminary decree at any stage before passing of final decree. Similar view has been taken in a Bench decision reported in Somireddi Burrayya and Others Vs. It is, therefore, open to the Court to amend the plaint and the preliminary decree at any stage before passing of final decree. Similar view has been taken in a Bench decision reported in Somireddi Burrayya and Others Vs. Somireddi Atchayyamma, which was followed by a subsequent decision of the same High Court reported in Kalkonda Pandu Rangaiah Vs. Kalkonda Krishnaiah and Others. The Court below was perfectly justified in holding that it has jurisdiction to allow amendment of the plaint even though the preliminary decree has been passed in the suit. The Court cannot, however, straightway allow the amendment by adding other properties to the plaint schedule without going into the merits of the objection raised by the Defendants as to whether the properties sought to be added belong to the joint family or not. The Court should decide that question on the merits by giving opportunities to the parties to adduce evidence on the question of the character of the properties. 6. Subject to the above observations, this Civil Revision stands dismissed. As there was no appearance for the opposite parties, I make no order as to costs. Final Result : Dismissed