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2001 DIGILAW 497 (ORI)

NABEENA CHANDRA SAHU v. DEBASIS SAHU

2001-11-07

M.PAPANNA

body2001
JUDGMENT : M. Papanna, J. - The order dated 25.7.2000 passed by the learned Civil Judge (Senior Division), Aska in Title Suit No. 65 of 1997 is under challenge in Civil Revision No. 400 of 2000, preferred by the Plaintiff for rejecting his prayer for some amendment in the plaint and is also under challenge in Civil Revision No. 59 of 2001, preferred by the defendant for allowing Plaintiff's prayer for some other amendment in the said plaint. 2. The Plaintiff in the above sit is the petitioner and defendant in the said suit is the opposite party in Civil Revision No. 400 of 2000 and likewise the said defendant is the petitioner and the said Plaintiff is the opposite party in Civil Revision No. 59 of 2001. 3. Both the Civil Revisions having arisen out of the impugned order dated 25.7.2000 passed by the learned trial Judge in Title suit No. 65 of 1997, were heard analogously on the consent of the learned counsel for both the parties and are being disposed of by this common judgment. 4. Relevant facts necessary for determining the question in controversy in both the revisions are like this : Plaintiff, who brought the above suit seeking a decree for partition of the suit properties morefuily described in Schedules -A, B and C, is no other than the father of the defendant born through his first wife after whose death, he married Meenakhi Sahoo, who also passed away leaving behind her, the only daughter, Swagatika Sahoo for which on the advice of his father, Joginath Sahoo, he went for his third marriage with one Smt. Nilima Sahoo, who is serving as the Principal in Anganwadi Training Centre at Ambaguda in the District of Koraput. The Plaintiff and one Umacharan Sahoo, are the sons of Late Joginath Sahoo during whose life time on 7.10.1955 a partition suit T. S. No. 126 of 1955 filed by the said Umacharan Sahoo was compromised among them. The Plaintiff and one Umacharan Sahoo, are the sons of Late Joginath Sahoo during whose life time on 7.10.1955 a partition suit T. S. No. 126 of 1955 filed by the said Umacharan Sahoo was compromised among them. The Plaintiff who brought the present suit for partition of Joint family properties after the death of his father, filed an application under Order 6, Rule 17, C.P.C. after the said suit proceeded for some time seeking some amendment in the plaint such as impleading his brother Uma Charan Sahoo as defendant No. 2, inclusion of certain properties in Schedule 'B' and also addition of Schedule 'D' properties to the Plaint Schedule and claiming the same to be his self acquired properties over which the defendant has no manner of right, title, interest and possession. The relevant portion of the amendment sought for by the Plaintiff in the prayer portion of the plaint is quoted below : "In the prayer the Plaintiff wants to add after the words 'suit properties' described in Schedules 'A', 'B' and 'C' to declare that the properties described in Schedule 'D' of the plaint, are the self acquired properties of the Plaintiff and the defendant has no right to claim share in them." 5. The defendant opposed the application for amendment sought for, as stated above on the ground that Uma Charan Sahu should not be added as a party to the suit for no part of the suit properties relates to him and inclusion of some properties in Schedule 'B' and addition of Schedule 'D' properties to the plaint schedule with a prayer to declare, the latter (Schedule 'D' properties) would change the nature and character of the suit. 6. The learned trial Judge after hearing the parties to the suit passed the impugned order allowing the amendment sought for by the Plaintiff in respect of impleading Uma Charan Sahu as defendant No. 2 as well as in respect of inclusion of certain properties in Schedule 'B' and by the by disallowing the proposed amendment for addition of Schedule 'D' properties to plaint schedule as the same would be a surprise to the defendant in the absence of pleading to that effect in the plaint. He has also opined that the suit being for partition of Schedule 'A', 'B' and 'C' properties the prayer for inclusion of Schedule 'D' properties as self acquired properties in the plaint will change the nature and character of the suit. 7. In Civil Revision No. 59 of 2001, the learned counsel for the petitioner contended that the impugned order is unsustainable being illegal and arbitrary, particularly when the issues have already been framed on the pleadings of the parties and no relief having been claimed against the proposed amendment for inclusion of certain properties and impletion of Uma Charan Sahu as defendant No. 2, in the suit, it leads to multiplicity of litigation, to which the learned counsel appearing on behalf of the opposite parties refuted stating that the factual assertion in the plaint having remained unchanged and the defendant is not to controvert any new fact, the impugned order allowing the amendment sought for is quite justified. 8. tn view of the contentions addressed by the learned counsel for the parties, I am called upon to examine whether the learned trial Judge has exercised his jurisdiction legally in passing the impugned order allowing the amendment sought for by the Plaintiff against which the Civil Revision No. 59 of 2001 is preferred by the defendant. I have gone through the pleadings embodied in the plaint and written statement together with the amendment application, and its counter and found that in 1955 a partition suit (Title suit No. 126 of 1955) brought by Plaintiff's brother, Uma Charan Sahu ended in compromise for which impleading of Uma Charan Sahu as a party to the present suit (Title suit No. 65 of 1997) being purely clerificatory in nature, the amendment to that effect cannot be said to be illegal, nor irrelevant. Like-wise so far as amendment for inclusion of certain properties in Schedule 'B' of the plaint is concerned, it is seen that the same is most formal in nature and if the same is allowed, it would not change the nature and character of the suit, particularly when the factual assertion in the plaint has not been controverted. In A.K. Gupta and Sons Vs. In A.K. Gupta and Sons Vs. Damodar Valley Corporation, The Apex Court has held that In the matter of allowing amendment of pleadings the general rule is that a party is not allowed by amendment to set up a new case or new cause of action particularly when a suit on the new cause of action is barred. Where, however, the amendment does not constitute addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after expiry of the statutory period of limitation. Therefore, I hesitate to interfere with the impugned order of the learned trial Judge, in the light of the dictum quoted above. In the premises, I am of the considered view that the trial Judge has allowed the aforesaid amendment by exercising his jurisdiction quite legally and justiciably without any material irregularity and thus the Civil Revision No. 59 of 2001 does not merit any consideration for which the same is liable to be dismissed. 9. So far as Civil Revision No. 400 of 2000 is concerned, the learned counsel appearing for the petitioner has drawn my attention to paragraph - 8 of the plaint containing the factual assertion made by the Plaintiff to the effect that the properties situated at Bhubaneswar are his self acquired properties which he wants now to include in Schedule 'D' to the plaint which reads as follows : "Para - 8. The Plaintiff was having lucrative practice as an Advocate having a good income and was paying Income Tax till 1993. It was a fateful year. It is in the year 1993, the second wife of the Plaintiff died. Since then, all kinds of trouble began for the Plaintiff. It is in the year 1993, the Plaintiff married his third wife on the advice of his father and shortly thereafter, the Plaintiff became absentee landlord so to say making up and down from Ambaguda as stated above. Naturally, the Plaintiff has a set back in his profession due to shifting to Ambaguda and the Plaintiff is exposed to wrongful loss by that. Naturally, the Plaintiff has a set back in his profession due to shifting to Ambaguda and the Plaintiff is exposed to wrongful loss by that. But previously when he was having a good professional income the Plaintiff with his own earnings and income acquired two houses, one house at Chandrasekharpur and other is at Tankapani Road -Pandava Gumpha of Bhubaneswar and they are the absolute, exclusive and self acquired properties of the Plaintiff over which the defendant has no right, title and interest in any manner. Of Course as the Plaintiff has been staying at a distant place, the plaintiff permitted his son (defendant) to collect the rentals of those houses on his behalf." 10. The only contention raised by him is that the pleadings as aforesaid having been embodied in the body of the plaint indicating the manner of acquisition of properties in Schedule 'D' which the plaintiff wants to add to the plaint schedule herewith a prayer to declare the same as his self acquired properties, the learned trial Judge ought not to have disallowed the proposed amendment on the finding that addition of Schedule 'D' properties to the plaint schedule with a prayer to declare the same as his self acquired properties is a surprise to the defendant. A reading of para-8 of the plaint makes it manifestly clear that the Plaintiff has made necessary factual assertion therein regarding acquisition of the properties at Bhubaneswar claiming the same to be his self acquired properties to which the defendant denied with a counter claim made in his written statement that the said properties were purchased out of the income of his grandfather and as such the finding of the learned trial Judge that it would become surprise to the defendant, if prayer to declare the said properties as his self acquired properties is allowed, is nothing but outcome of exercise of jurisdiction with material irregularities, particularly when the parties to the suit have been fully cognisant of the above points. 11. In Nanduri Yogananda Lakshminarasimhachari and Others Vs. Sri Agastheswaraswamivaru their Lordships of the Supreme Court have ruled that when all the allegations having been there in the plaint, and the issues having been framed on the question, the parties were fully cognizant of the point. The addition of a new prayer by amendment was allowed. 11. In Nanduri Yogananda Lakshminarasimhachari and Others Vs. Sri Agastheswaraswamivaru their Lordships of the Supreme Court have ruled that when all the allegations having been there in the plaint, and the issues having been framed on the question, the parties were fully cognizant of the point. The addition of a new prayer by amendment was allowed. In the case at hand, as mentioned above, in paragraph 8 of the plaint as there have been pleadings claiming the properties in question as self acquired properties to which there has been a counter claim made in the written statement filed by the defendant, the parties are held to have been fully cognizant of the claim and counter claim in respect of which a new prayer by amendment need not be refused in the facts and circumstances of the case. In fact, when the relevant pleadings have been very well reflected in paragraph 8 of the plaint, addition of new prayer by amendment does not constitute addition of new cause of action or raise a different case and rather it is a different or additional approach to the same facts. In A.K. Gupta and Sons Vs. Damodar Valley Corporation, the Apex Court has ruled that in cases where an amendment does not constitute addition of new cause of action or raise a different case, 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. For the purpose of guidance it is rather profitable that reliance should also be placed on Nanda Moharana Vs. Lakshman Moharana and Others, wherein the Chief Justice Shri G. K. Mishra of Orissa High Court (as he then was) held that where the Plaintiff on the facts pleaded could have asked for the relief, which he wanted to ask by way of amendment, from the very beginning, the amendment cannot be said to be such as to alter the nature of the suit. 12. 12. In the present case, by the amendment sought for by the Plaintiff, nothing more is asked than a prayer for declaration of properties in Schedule 'D' as self acquired properties which he could have done from the very beginning and now by addition of new prayer to the above fact, the nature of the suit would not change in the peculiar facts and circumstances of the case and particularly when the defendant would get an ample opportunity to contest the suit and assail the fact. I am fully satisfied on the facts of this case applying the dictum as aforesaid that the trial Judge has gone wrong by disallowing the amendment sought for by the Plaintiff and thereby exercising his jurisdiction with material irregularities. In one sentence the amendment would never cause prejudice to the defendant in any manner. Moreover, in the amendment the Plaintiff is seeking to clarify by addition of a new prayer that he has acquired the properties at Bhubaneswar, which are to be declared as his self acquired properties. Therefor, on the facts already pleaded in paragraph 8 of the plaint, when it is open to the Plaintiff to ask for the relief, which the learned trial Judge ought to have liberally allowed the amendment sought for. 13. Therefore, in view of the reasons recorded and the rulings applied as above, that portion of the impugned order allowing the plaintiff's prayer for amendment in the plaint against which Civil Revision No. 59 of 2001 has been preferred by the defendant is maintained, while the other portion of the impugned order disallowing the Plaintiff's prayer for amendment for addition of a new prayer that the properties described in Schedule 'D' of the plaint are his self acquired properties and the defendant has no right to claim share in them against which the Plaintiff preferred Civil Revision No. 400 of 2000 is set aside. 14. In the ultimate result, Civil Revision No. 59 of 2001 is dismissed while Civil Revision No. 400 of 2000 is allowed without cost in the peculiar facts and circumstances of the case.