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2005 DIGILAW 386 (ORI)

Sarat Chandra Parija v. Pramila Parija

2005-06-24

L.MOHAPATRA

body2005
JUDGMENT L. MOHAPATRA, J. — This writ application is directed against the order dated 10.3.2005 passed by the learned Civil Judge (Jr. Division), Kujanga in Title Suit No. 39 of 2001 refusing the prayer for amendment of the plaint. 2. The plaintiff-petitioners filed a suit for declaration that the defendant-opposite party No. 1 was not the legally married wife of late Jadumani Parija and that the plaintiff-petitioners are entitled to get the family pension being legal heirs of late Jadumani Parija. The case of the plaintiff-petitioners is that late Jadumani Parija who was working as a Teacher in a Primary School retired on 21.7.1973 and died on 29.9.1991. After superannuation, late Jadumani Parija was getting pension and after his death, the plaintiff-petitioners are entitled to get family pension. The further case of the plain¬tiff-petitioner is that the defendant-opposite party No. 1 is not the legally married wife of late Jadumani Parija and was only a concubine. According to the plaintiff-petitioners, late Jadumani Parija had married one Sundarmani Parija who died on 18.6.1972 leaving behind the plaintiffs as the legal heirs, who are her sons. It further appears from the plaint that after death of Jadumani Parija, defendant-opposite party No. 1 had approached this Court in a writ application claiming payment of family pension to her on the ground that she is the legally married wife of late Jadumani Parija. The said writ application was disposed of on 16.12.1999 with direction to the concerned authorities to consider the case of the defendant-opposite party No. 1. When this matter came to the knowledge of the plaintiff-petitioners, they also approached this Court in a writ application in the year 2000 and operation of the order passed in the earlier writ appli¬cation filed at the behest of defendant-opposite party No. 1 was stayed. By a subsequent order, this Court held that the dispute basically relates to questions of fact and, therefore, the matter should be decided in an appropriate Civil Court and accordingly the suit was filed. During pendency of the suit, a petition was filed for amendment of the plaint and as it appears from the said petition that the word “prove” appearing in paragraph-8 of the plaint was sought to be deleted on the ground that it has been wrongly typed and prayer was made to substitute the word “dis¬prove”. During pendency of the suit, a petition was filed for amendment of the plaint and as it appears from the said petition that the word “prove” appearing in paragraph-8 of the plaint was sought to be deleted on the ground that it has been wrongly typed and prayer was made to substitute the word “dis¬prove”. The other amendment prayed for is with regard to the date of retirement of Jadumani Parija, which has been wrongly typed as “21.7.1973” instead of 22.7.1973" as well as the year of pension mentioned in the payment order. 3. The said prayer for amendment was resisted by defend¬ant-opposite party No. 1 on the ground that after hearing of the suit starts, there is no scope for amendment of the plaint and that the proposed amendment will fill up the lacuna in the plaint. 4. The trial Court rejected the petition for amendment on the ground that the effect of admission appearing in paragraph-8 of the plaint cannot be taken away by way of amendment and that once hearing of the suit has commenced, there is no scope for amendment of the plaint. 5. Shri Kar, the learned counsel appearing on behalf of the petitioners submitted that the proposed amendments neither change the nature and character of the suit nor shall they cause any prejudice to the defendant-opposite party No.1. So far as admission of the plaintiff-petitioners appearing in paragraph-8 of the plaint is concerned, it was contended by Shri Kar that the word “prove” has been wrongly typed and same should have been “disprove”. So far as other amendments are concerned, they are formal in nature without affecting the merits of the case. Therefore, the amendments should have been allowed. The learned counsel relied on some decisions of this Court as well as the Apex Court. The learned counsel appearing for the defendant-opposite party No. 1 vehemently objected to the prayer for amendment on the ground that once hearing of the suit has commenced, under the amended Code of Civil Procedure, no prayer for amendment should be allowed and moreover the effect of an admission cannot be taken away by way of amendment. 6. A copy of the plaint has been annexed to the writ application as Annexure-1. 6. A copy of the plaint has been annexed to the writ application as Annexure-1. From the beginning till end of the plaint it has been specifically averred several times by the plaintiff-petitioners that the defendant-opposite party No. 1 is not the legally married wife of late Jadumani Parija and that she was a concubine. In paragraph 2 of the plaint, it has been specifically pleaded that Jadumani had married one Sundarmani Parija and that the said Sundarmani died on 18.6.1972 leaving behind the two plaintiffs as her sons. Since the consistent plea of the plaintiff-petitioners is that the defendant-opposite party No. 1 is not the legally married wife of late Jadumani Parija, the word “prove” appearing in paragraph-8 of the plaint appears to be a typographical error. The Apex Court in the case of Panch¬deo Narain Srivastava Vrs. Km. Jyoti Sahay and another reported in AIR 1983 Supreme Court 462 observed that an admission made by a party may be withdrawn or may be explained away and therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. A similar view has also been taken by this Court in the case of Gobinda Sahoo Vrs. Ram Chandra Nanda and another re¬ported in AIR 1974 Ori. 36 . So far as present case is concerned as stated earlier, the case of the plaintiff-petitioners throughout is that the defendant-opposite party No. 1 is not the legally married wife of late Jadumani Parija. This being the stand of the plaintiffs, the word “prove” appearing in paragraph-8 of the plaint is definitely a typographical error and, therefore, the amendment sought for will not change the nature and the character of the suit. So far as other two proposed amendments are concerned, they only relate to the date of retirement of late Jadumani Parija and the year of pension mentioned in the payment order. Any change in the date will not change the nature and character of the suit since the dispute is who is entitled to family pension after death of late Jadumani Parija. The other ground on which the trial Court has rejected the petition is that once hearing of the suit has commenced, prayer for amendment cannot be entertained. In this connection, reference has also been made to a decision of this Court in the case of Pankaja and another Vrs. Yellappa (D) by L.Rs. The other ground on which the trial Court has rejected the petition is that once hearing of the suit has commenced, prayer for amendment cannot be entertained. In this connection, reference has also been made to a decision of this Court in the case of Pankaja and another Vrs. Yellappa (D) by L.Rs. and others reported in 98 (2004) CLT 612 (SC). The Apex Court in the aforesaid case held that so far as the Court’s jurisdiction to allow an amendment of plead¬ings is concerned, there can be no two opinion that the same is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment applications. In view of the above, I am of the view that the trial Court should have allowed the prayer for amendment. 7. Accordingly, this writ application is allowed, the impugned order is set aside and the plaintiff-petitioners are directed to file the consolidated plaint within one month from today. Application allowed.