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2008 DIGILAW 167 (ORI)

Padmabati Chowdhury v. Harish Chandra Kar

2008-02-27

I.MAHANTY

body2008
JUDGMENT I. MAHANTY, J. — The petitioners in this writ application have seek to challenge the order dated 27.02.1999 passed by the Dis¬trict Judge, Balasore-Bhadrak, Balasore in Civil Revision No.74 of 1997 whereby the learned District Judge has set aside the order dated 27.10.1997 passed by the learned Civil Judge (Jr. Divn.), Balasore allowing an application filed under Order 6, Rule-17 CPC. 2. The brief facts of the case are that late Surendra Prasad Choudhury, as plaintiff, had filed O.S. No.680 of 1990-I in the Court of the Munsif, Balasore for correction of record of rights. Subsequently, in view of the observations made by the District Judge in his judgment dated 9.8.1996 passed in Misc. Appeal No.37 of 1993, the plaintiff filed an application in the said suit under Order 6, Rule-17 CPC for amendment of the plaint to implead his wife Padmabati as a co-plaintiff. On consideration of the objections raised by the defendants to the said applica¬tion under Order 6, Rule 17, the learned Civil Judge (Jr. Divn.), Balasore allowed the said application by his order dated 27.10.1997. Being aggrieved by the said order, the defendants carried a revision to the District Judge, Balasore in Civil Revision No.74 of 1997 which came to be disposed of by the order dated 27.2.1999, inter alia, allowing the said revision and quashing the order dated 27.10.1997 passed by the Civil Judge. 3. Mr. Panigrahi, learned counsel for the petitioners challenging the revisional order dated 27.2.1999, submits that basically late Surendra Prasad Choudhury filed the suit, as manifest from the heading of the plaint, for correction of record of rights and in the prayer contained in the plaint, the plain¬tiff had made a further prayer for delivery of possession of the suit land. 4. The suit lands in Schedules- A,B and C are clearly described in the sketch map as per Scheduled-D to the plaint. In so far as Lot No.1 to Schedule-A is concerned, the said land pertains to Khata No.88, Plot No.985 Ac.0.011 decimals and Lot No.2 contains an area of Ac.0.15 decimals in Plot No.991 under Khata No.756. The amendment sought for by the plaintiff was resisted by the defendants on the ground that the amendment shall change the nature and character of the suit. Mr. The amendment sought for by the plaintiff was resisted by the defendants on the ground that the amendment shall change the nature and character of the suit. Mr. Mahakud, learned counsel for the Opp.party No.6-defendant submits that by way of amend¬ment, the plaintiff sought for introducing his wife-Padmabati Choudhury as Plaintiff No.2 which amounts to filing of the suit by two persons and not one person. 5. Mr. Panigrahi, learned counsel for the petitioners submits that there was a “mis-description of the names” of the plaintiff for which the amendment was sought for, inasmuch as, the property in Lot No.1 in Schedule-A belongs to the wife of the plaintiff i.e. Padmabati Choudhury and although the land has been mentioned in the Schedule-A to the suit, the name of Padmabati was not described in the plaint for which the plaintiff sought for an amendment. According to Mr. Panigrahi, the amendment sought for was only for the purpose of correction of mistakes in the plaint and it does not change the nature and character of the suit in any manner and the relief sought for. Mr. Panigrahi further submits that during the pendency of the present writ application, said Surendra Prasad Choudhury has passed away and in his place, his wife and children have been substituted and therefore, since Padmabati has now been impleaded as a party as the legal heir of late husband, no objection for impleading her as co-plaintiff should be entertained. 6. Mr. Mahakud, learned counsel for Opp.party No.6 placing reliance on a decision of the Supreme Court in the case of Pir¬gonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363 , in particular Paragraphs-7,8 and 9 thereof, submits that this Court should not interfere with the order passed in the civil revision since late S.P. Choudhury sought to implead his wife-Padmabati by way of amendment at a time beyond the period of three years provided under Section 42 of the Survey and Settle¬ment Act. It is contended that since Padmabati did not file any suit within the time prescribed, allowing the amendment would amount to permitting her for filing the suit beyond the pre¬scribed period. It is contended that since Padmabati did not file any suit within the time prescribed, allowing the amendment would amount to permitting her for filing the suit beyond the pre¬scribed period. He submits that when by way of limitation a right is extinguished, such a right should not brought in question or re-agitated by way of allowing the amendment and in the present case, allowing the amendment would cause injustice to the defend¬ants. 7. I have perused the case law referred to above. From the said case it is clear that their Lordships of the Supreme Court while referring to the case of Kisandas Rupchand v. Rachappa Vithoba, 33 Bom. 644 did not agree with the contention advanced by the learned counsel for the petitioner therein and came to hold that “It is not feasible nor advisable to encase a discre¬tionary power within the strait jacket of an inflexible formula.” But at the same time their Lordships have affirmed the principles enunciated by Batchelor, J. in the same case at the subsequent pages which is as follows : “All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties......” In the selfsame judgment, the Hon’ble Supreme Court applied the said principle and since the amendment sought for did not really introduce a new case and the application filed by the appellant himself showed that he was not taken by surprise; nor did he have to meet a new claim set up for the first time after the expiry of the period of limitation. 8. With due respect, the issues of the present case that arise for consideration are very similar to the issues that arose for consideration in the case referred to above. In the present case the plaintiff had not impleaded his wife as co-plaintiff, though the landed property held in the name of his wife-Padmabati formed part of the original suit property. Therefore, there is no question of any injustice to the defendants and since the land in question already formed part of the suit schedule land, the defendants cannot say that he has taken by surprise. 9. Mr. Therefore, there is no question of any injustice to the defendants and since the land in question already formed part of the suit schedule land, the defendants cannot say that he has taken by surprise. 9. Mr. Mahakud, learned counsel for the Opp.Party submits that in the present case when a right of Padmabati was extin¬guished by lapsing of three years from the date of publication of R.O.R. in terms of Section 42 of the Survey and Settlement Act, by allowing the amendment at a later stage amounts to allowing that person to file a suit beyond the period of limitation and thereby great injustice is caused to the defendants. 10. Mr. Panigrahi, learned counsel for the petitioners has relied upon a judgment in the case of Pankaja and another v. Yellap¬pa (D) by L.Rs and Others, 98 (2004) CLT 612 (SC) and in particu¬lar on paragraphs 12, 13 and 14 of the said judgment which are quoted below : “12. So far as the Court’s jurisdiction to allow an amendment of pleadings 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. This Court in numerous cases has held the dominant purpose of allowing the amendment is to minimize the litigation, therefore, if the facts of the case so permits, it is always open to the Court to allow applications in spite of the delay and laches in moving such amendment application. 13. But the question for our consideration is whether in cases where the delay has extinguished the right of the party by virtue of expiry of the period of limitation prescribed in law, can the Court in the exercise of its discretion take away the right accrued to another party by allowing such belated amend¬ments ? 14. The law in this regard is also quite clear and consist¬ent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and cir¬cumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. Discretion in such cases depends on the facts and cir¬cumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of plead¬ings. Each case depends on the factual background of that case.” 11. In the said case their Lordships of the Apex Court taking note of the earlier decisions on the point held that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. In such cases, power is vested in the Court and discretion depends on the facts and circumstances of the case. The jurisdiction to allow or not allow an amendment being discretionary, the same will have to be exercised in a judicious evaluation of the facts and circum¬stances in which the amendment is sought. It is also clear from the said judgment that if the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. Their Lordships reiterat¬ed that there can be no straight jacket formula for allowing or disallowing an amendment of pleadings. 12. In the present case it is an admitted fact that the R.O.R. was issued on 28.12.1987 and the present suit was filed on 15.10.1990 i.e. clearly within the period of limitation pre¬scribed by the statute. Therefore, the suit admittedly having been filed in time, the amendment sought for would date back to the date of filing of the suit and allowing the amendment per se would not amount to reviving a right which was extinguished by operation of law. 13. In view of the aforesaid facts and circumstances of the case, I am of the view that in the interest of justice allowing the amendment in no manner causes prejudice to the Opp.Parties (defendants) since the amendment sought for was only for correc¬tion of errors and impleading Padmabati whose land had already formed part of the plaint. 13. In view of the aforesaid facts and circumstances of the case, I am of the view that in the interest of justice allowing the amendment in no manner causes prejudice to the Opp.Parties (defendants) since the amendment sought for was only for correc¬tion of errors and impleading Padmabati whose land had already formed part of the plaint. I am further of the view that in the amendment petition, no new claim has been set up and therefore, it is a fit case where the amendment has to be allowed failing which grave injustice would be caused to the plaintiff. 14. Considering the contentions advanced by the learned counsel for the parties and keeping in view the case laws, the writ application is allowed and the impugned order dated 27.2.1999 under Annexure-6 is quashed. The order dated 27.10.1997 passed by the Civil Judge (Jr.Divn.), Balasore in O.S. No.680 of 1990 is affirmed. Application allowed.