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2008 DIGILAW 352 (ORI)

GOPAL CHANDRA DAS v. STATE OF ORISSA

2008-04-23

A.K.PARICHHA

body2008
JUDGMENT : A.K. Parichha, J. - The Plaintiff is in appeal against the Judgment of the Learned District Judge, Cuttack in T.A. No. 59 of 1997 confirming the Judgment and decree of the Learned Civil Judge (Senior Division), 1st Court, Cuttack in T.S. No. 325 of 1995. 2. The Appellant filed the suit for declaration of his right, title over the suit land on the ground that the suit land was lying vacant and his father started possessing it in the year 1947 and since then his father and he himself (Plaintiff) are in continuous possession of the suit land and have acquired title over the same by adverse possession. Though the Government Pleader appeared for Defendant No. 1-State of Orissa, none of the Defendants filed written statement. The Plaintiff examined four witnesses and produced the copy of the 80, C.P.C. notice, postal A.D. and certified copy of R.O.R. in respect of Khata No. 236, which were marked as Exts. 1 to 3 respectively. On consideration of the pleadings and the evidence, the Trial Court came to hold that the suit land is the ceiling surplus land, that the Plaintiff could not prove that his father was in possession of the suit land, that they had not constructed house on the suit land and that there was no satisfactory evidence as to how and when adverse possession began and against whom such adverse possession is claimed. The Trial Court, accordingly, dismissed the suit. The Appellant went in appeal. In that appeal, the Appellant filed a petition under Order 6, Rule 17, C.P.C. for amendment of the plaint incorporating the name of the owner against whom he claimed adverse possession, the starting date of possession and the manner of such possession etc. The said prayer was rejected on the ground that it was not an amendment of formal nature and that it would amount to filling up the lacuna of the Plaintiffs case. The 1st Appellate Court then considered the submission of the parties, re-assessed the materials and confirmed the findings of the Trial Court. Challenging that Judgment and decree, the Appellant has filed the present appeal. 3. The only substantial question of law for consideration in this appeal is whether the 1st Appellate Court was legally justified in turning down the prayer of the Appellant for amendment of the plaint. 4. Mr. Challenging that Judgment and decree, the Appellant has filed the present appeal. 3. The only substantial question of law for consideration in this appeal is whether the 1st Appellate Court was legally justified in turning down the prayer of the Appellant for amendment of the plaint. 4. Mr. S.K. Nayak-2, Learned Counsel for the Appellant submits that amendment of pleading is permissible even at the Appellate stage. According to him, the prayer for amendment should be considered liberally so that multiplicity of the proceedings can be avoided and substantial justice can be imparted to the parties. In support of this plea, he cited the case of Gudu Bhotra and Ors. v. Tapaswini Rondhari and Ors. 1997(1) OLR 434. He submits that the first Appellate Court did not follow the spirit of Order 6, Rule 17, C.P.C. in its right perspective. 5. Mr. P. Kar, Learned Counsel for Respondent No. 7, on the other hand, supports the impugned Judgment and states that amendment of the plaint at the Appellate stage cannot be allowed if such proposed amendment tends to change the nature and character of the suit or is intended to fill up the lacuna in the case of a party and thereby frustrate the decree of the lower Court. According to him, when the Appellate Court had rejected the plea of adverse possession on the ground that the Plaintiff did not plead against whom he claims adverse possession, the starting point of his possession and the type of possession, the proposed amendment could not have been allowed as that would, not only fill up the lacuna of the Plaintiffs case, but would also have the effect of nullifying the decree of the Trial Court. 6. There is no dispute that amendment of pleading is permissible even at the Appellate stage. As has been said in the case of Gudu Bhotra (supra) as well as Sakhi Dei (after her) Laxmi Dei v. Banamali Sahu and Ors. 81 (1996) CLT 119, amendments should be allowed if it is necessary to bring out the real controversy between the parties and for doing justice, unless it appears that the party is acting mala fide or that the amendment if allowed would cause injury to the other side, which cannot be compensated by award of cost. In the case of Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. In the case of Haji Mohammed Ishaq Wd. S.K. Mohammed and Others Vs. Mohamad Iqbal and Mohamed Ali and Co. it was clarified that amendment which introduces a new case or filed for the purpose of filling up of any lacuna is not to be allowed as that will cause prejudice to the other party. Law is, therefore, settled that if the amendment is formal in nature or is necessary for just and proper adjudication of the lis between the parties and will save multiplicity of the proceedings then the amendment can be allowed even at the Appellate stage. But the proposed amendment, which will change the nature and character of the case or will fill up the lacuna in the case of a party and will cause prejudice to the other side, is not to be allowed. 7. In the present case, the Plaintiff-Appellant claimed title over the suit land by way of adverse possession. But in his pleading he did not indicate the name of the real owner of that land against whom he claims adverse possession nor there was any indication in the plaint as to when such possession becomes adverse and in what manner and when his hostile animus was known to the real owner. In absence of such pleading and also for want of any evidence showing possession of the Plaintiff from the time of his father, the Trial Court rejected the claim of title of the Plaintiff by adverse possession. Once the proposed amendment is allowed, not only the glaring lacuna in the Plaintiffs case would be filled up, but the Judgment and decree of the Trial Court would be automatically erased, in which event not only prejudice, but also irreparable loss may occur to the other party. Moreover, the Plaintiff-Appellant himself produced Ext. 3, the R.O.R. where the name of the recorded tenant is available. So, it was not a case where the Plaintiff was ignorant of the name of the recorded tenant and therefore, could not name the real owner in the plaint. In such backdrop, the rejection of the prayer for amendment cannot be said to be illegal or against the settled norms of law. 8. In the present appeal, the Appellant has filed a petition for accepting some documents as additional evidence, particularly, the documents of ceiling surplus proceeding. In such backdrop, the rejection of the prayer for amendment cannot be said to be illegal or against the settled norms of law. 8. In the present appeal, the Appellant has filed a petition for accepting some documents as additional evidence, particularly, the documents of ceiling surplus proceeding. An identical prayer had also been made before the 1st Appellate Court, who rejected that prayer. As has been said earlier, the Plaintiff had all the opportunity of producing his evidence before the Trial Court. According to his own pleading, the ceiling proceeding and the documents were already in existence and were also within the knowledge of the Plaintiff. No good reason was assigned as to why these documents were not obtained earlier and were not filed and how it was beyond the control of the Plaintiff. So at this stage there was no scope of accepting these documents as additional evidence. In view of the aforesaid situation, the substantial question of law is answered against the Appellant. The appeal is thus found to be without any merit and the same is dismissed on contest, but without any cost. Final Result : Dismissed