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2001 DIGILAW 428 (ORI)

ARATI MUKHERJEE v. SAMBHUNATH MUKHERJEE

2001-10-03

M.PAPANNA

body2001
JUDGMENT : M. Papanna, J. - The order of the learned 1st Addl. Civil Judge (Sr. Division), Cuttack, passed in T.S. No. 91/91 allowing plaintiffs' prayer for amendment of the plaint is under challenge in this Civil Revision. 2. Defendants 1 to 4 in T.S. No. 91/91 before the learned 1st Addl. Civil Judge (Sr. Division), Cuttack are the petitioners whereas the plaintiffs in the suit are the opposite parties herein. 3. Brief facts of the case needed for determining the question in controversy in the revision are like this : Plaintiffs brought the above suit for the decree for partition of the suit properties. One late Birendra Kumar Mukherjee was the common ancestor of the plaintiffs and also defendants. He had five sons. Nirmal Kumar Mukherjee was his eldest son. He was the custodian of his father's property in Cuttack town. His other four sons being well placed were serving elsewhere. In 1973 there was a partition of his immovable properties among his widow Taru Bala Mukherjee and five sons by a Bibada Bhanjan Patra. His agricultural lands and some movable properties continued to be their joint properties. His eldest son Nirmal Kumar Mukherjee was in possession of the said properties. In course of time he squandered away some movable properties. Rest of the joint family movable properties are liable to be partitioned among the co-sharers. In 1980 Taru Bala Mukherjee wife of the common ancestor died. Her share of property allotted to her in 1973 is to be succeeded by her five sons. Nirmal Kumar Mukherjee unscrupulously recorded her mother's property exclusively in his name in the running settlement behind the back of other four sons, who filed settlement cases before the Commissioner of Land Records and Settlement, Orissa, who in turn in R.P. Case No. 36/90 finally decided that the said property is their joint family property. However, the defendants grabbed the said property after the death of Nirmal Kumar Mukherjee in 1985. So the plaintiffs and the defendants came into litigating terms centring-round the said property. The plaintiffs made demand for partition of the property many a time, the last one being made on 25.12.1991 as per the plaint averments. When the defendants 1 to 4 turned deaf ear to the said demand and threatened the plaintiffs with dire consequences, they brought the above suit for partition of the property in question. 4. The plaintiffs made demand for partition of the property many a time, the last one being made on 25.12.1991 as per the plaint averments. When the defendants 1 to 4 turned deaf ear to the said demand and threatened the plaintiffs with dire consequences, they brought the above suit for partition of the property in question. 4. On the pleadings of the parties, the learned trial Judge, who framed the issues, proceeded with the suit by examining two witnesses on behalf of the plaintiffs and closed their side on 3.5.2001 and allowed the defendants to adduce their evidence. But he recalled the order dated 3.5.2001 when the defendants failed to adduce evidence on the date fixed and allowed the plaintiffs to adduce further evidence on their behalf subject to payment of cost of Rs. 100/-. 5. On 23.7.2001, the plaintiffs filed a petition under Order VI Rule 17 C.P.C. seeking amendment of the date of cause of action as 25.12.1990 instead of 25.12.1991, on the ground that the mistake in the year of cause of action (that is 1991) occurred on account of typographical mistake to which the defendants objected on the ground that the proposed amendment being a new cause of action changing the nature and character of the suit, the defendants should be highly prejudiced if the same is allowed. The learned trial Judge upon hearing both the parties came to hold that the date of cause of action as has been mentioned in the plaint as 25,12.1991 instead of 25.12.1990 as per the proposed amendment was nothing but purely a typographical mistake. Accordingly, he allowed the plaintiffs to amend the plaint in respect of the date of cause of action subject to payment of cost of Rs. 300/- with a direction to file there consolidated plaint. 6. The impugned order allowing the amendment of the plaint has been assailed by the learned counsel for the petitioners in the revision. Relying on 88 1990 CLT 628, Kanhu Charan Mohanty v. Prafulia Chandra Mishra, and 1 1986 OLR 628 , Matu Sandh v. Man Bondh Bagarti, he has contended that the impugned order is unsustainable in law as the amendment sought for by the plaintiffs would change the nature and character of the suit. Relying on 88 1990 CLT 628, Kanhu Charan Mohanty v. Prafulia Chandra Mishra, and 1 1986 OLR 628 , Matu Sandh v. Man Bondh Bagarti, he has contended that the impugned order is unsustainable in law as the amendment sought for by the plaintiffs would change the nature and character of the suit. On the other hand, the learned Counsel appearing for the opposite parties supported the impugned order as justiciable and sustainable in law because it would never change the nature and character of the suit. 7. Order VI Rule 17 CPC says that the Court may any stage of the proceedings allow either party to alter or amend his pleadings 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. This is the settled principles of law which all the High Courts of the country and even the Apex Court have held in galaxy of decisions and want the courts of justice to follow it while allowing alteration of amendment of the pleading keeping in view that by such alteration or amendment multiplicity of the suit shall be avoided. It is incumbent on the part of the Court to take into account the changed circumstances or subsequent events but at the same time it must take caution so as not to allow alteration or amendment of pleadings with the effect that the character of the suit shall be entirely changed thereby altering the very foundation of the claim of the parties. The distinct and separate cause of action converting the suit into another of totally different character is neither intended nor permitted. It should also be borne in mind that expediency of avoiding multiplicity of suit is also no ground to allow alteration or amendment of pleading which will change the fundamental character of the suit. 8. In the case at hand, on 22.2.1991, the plaintiffs filed the suit but 25.12.1991 has been mentioned in the plaint as the cause of action of the suit. The date of cause of action instead of preceding the date of filing of the suit, has followed it in the present case. 8. In the case at hand, on 22.2.1991, the plaintiffs filed the suit but 25.12.1991 has been mentioned in the plaint as the cause of action of the suit. The date of cause of action instead of preceding the date of filing of the suit, has followed it in the present case. The plaintiffs have asserted that the date of cause of action was 25.12.1990 on which they made a demand for partition of the suit properties for the last time before the defendants who turned deaf ear and threatened them with dire consequences but the said cause of action has been mentioned in the plaint as 25.12.199f due to typographical mistake which the learned trial Judge believed and accepted as typographical mistake which being formal in nature would not change the nature and character of the suit itself without causing prejudice to the defendants. Normally, amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action or raise a new case, but amounts to no more than adding the facts already on record, the amendment would be allowed even after the statutory period of limitation. The Apex Court has taken this view in Vineet Kumar Vs. Mangal Sain Wadhera. Now coming to the case at hand, what I find is that by changing the date of cause of action, the plaintiffs do not want to change every facts in the plaint by proving which they shall be entitled to their claim, in the present context, the plaintiffs sought for amendment of the date of cause of action specifically that too the year of the said cause of action to be 1990 instead of 1991 which does not mean a new claim basing on new facts. In A.K. Gupta and Sons Vs. Damodar Valley Corporation, the Apex Court has taken the view that in cases where the amendment does not constitute the addition of a new cause of action or raise a different case altogether, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed, even after the statutory period of limitation. Their Lordship explaining the meaning of the expression "cause of action" observed that the same does not mean every fact which is material to be . Their Lordship explaining the meaning of the expression "cause of action" observed that the same does not mean every fact which is material to be . proved to entitled the plaintiff to succeed, but it means a new claim made on new basis constituted by new facts. In the instant case, all the factual assertions in the plaint having been not changed except the date of cause of action and that too specifically the year 1990 instead of 1991, the impugned order cannot be said to be unsustainable in law. The decisions cited on behalf of the petitioners emphasize the general rule which the court should apply while allowing or rejecting the prayer for proposed amendment in the pleadings of the parties. In my humble opinion, the said decisions containing the facts different and quite distinguishable from the facts of the present case do not come to the rescue or the petitioners. 9. In the ultimate result, in view of what has been discussed above, I am in full agreement with the learned trial Judge in respect of the findings arrived at by him for which the Civil Revision being devoid of merit is hereby disallowed. No costs. 10. Civil Revision dismissed. Final Result : Dismissed