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2008 DIGILAW 739 (ORI)

NARESH CHANDRA SAHOO v. PITAMBAR SAHOO

2008-08-22

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - Challenge has been made in this writ petition to the order dated 11.11.2005 passed by the learned Civil Judge (Senior division), Kendrapara in I.S. No. 19 of 2002 allowing the petition dated 3.3.2005 filed by the Plaintiff under Order 6, Rule 17 of the CPC for amendment of the plaint, subject to payment of cost of Rs. 200/- with an observation that the prejudice caused to the Defendants can be compensated by awarding cost and the Defendants will not be prejudiced if such amendment is allowed as because they will be given a further chance to file additional written statement in order to meet the facts inserted by way of such amendment, if they so desire. 2. The Petitioners are the Defendants before the court below. Their main grienevance regarding amendment was that the Plaintiff wanted to replace in plaint certain facts which were barred by limitation by the date the amendment application was filed, i.e., 3.3.2005. In the objection to the amendment application, they specifically stated that the Plaintiff should not be permitted to replace the plaint all together by filing amendment application and the assertions made in the amendment application were barred by law of limitation. If the amendment was allowed and incorporated in the plaint and if it would relate back to the date of filing of the suit, a right accrued to the Defendants by efflux of time would be taken away. Therefore, they prayed to set aside the impugned order. However, from the impugned order it appears that the learned Civil Judge held that if the claim of the Plaintiff was barred by limitation, a separate issue in that regard would be framed and adjudicated. 3. The learned Counsel appearing for the opposite parties submitted that the application for amendment of the plaint should be considered liberally. In support of his contention, he cited a decision of the apex Court in the case of Puran Ram Vs. Bhaguram and Another, wherein it has been held that a time barred amendment could also be allowed considering the facts and circumstances of the case. In a suit for specific performance of contract for sale, it is permissible to amend a part of the description of the suit property not only in the plaint but also in the agreement. Bhaguram and Another, wherein it has been held that a time barred amendment could also be allowed considering the facts and circumstances of the case. In a suit for specific performance of contract for sale, it is permissible to amend a part of the description of the suit property not only in the plaint but also in the agreement. It was observed therein that Section 26 of the Specific Relief Act says as to when a contract or other instrument can be rectified and provides that when through fraud or a mutual mistake of the parties, the agreement in writing does not express their real intention, it is open to the parties to apply for an amendment of the instrument. It also provides that when such a situation arises, then (a) either party or his representative in interest may institute a suit to have the instrument rectified; or (b) the Plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified. So observing, the apex Court allowed the amendment as the relief claimed before as well as after the amendment remained the same, i.e. a decree for specific performance of contract of sale. 4. The learned Counsel for the Petitioner submitted that the said decision is not applicable to the facts and circumstances of the present case. As in the present case the Plaintiff filed the suit for partition of his 13 anna and 4 pahi share and permanent injunction and Defendants filed written statement denying the plaint allegations taking a specific stand that the claim of the Plaintiff is not tenable in the eye of law in view of the decision of the consolidation authority prior to the notification u/s 5(1) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act and in the meantime the said Defendant has died and in his place, his legal heirs have been substituted. 5. Law is well settled that the amendment of the pleadings may generally be allowed and it may also be allowed at a belated stage. However, no injustice or prejudice should be caused to the other side. The amendment sought for should be necessary for the purpose of determining the real question in controversy between the parties. 5. Law is well settled that the amendment of the pleadings may generally be allowed and it may also be allowed at a belated stage. However, no injustice or prejudice should be caused to the other side. The amendment sought for should be necessary for the purpose of determining the real question in controversy between the parties. The application for amendment may be rejected if the other party cannot be placed in the same position as if the pleadings had been originally correct, but the amendment would cause him injury which could pot be compensated in terms of cost or it would change the nature of the suit itself, as it cannot be permitted to create an entirely new case by amendment. A right accrued in favour of a party by lapse of time cannot be permitted to be taken away by amendment. The power to allow an amendment is undoubtedly wide and may at any stage, be properly' exercised in the interest of justice, the law of limitation notwithstanding, but the exercise of such farreaching discretionary power is governed by judicial consideration and wider the discretion, greater ought to be the care and circumspection on the part of the Court. After the new Amendment Act, 2002 of the CPC came into force, the amendment application should be moved at a proper stage. The apex Court in the case of Pankaja and Another Vs. Yellappa (D) by Lrs. and Others, held that there is absolutely no rule that amendment should not be allowed at a belated stage in a particular case. Even if amendment sought for is barred by limitation, if the Court after examining the facts and circumstances of the case comes to a conclusion that amendment serves the ultimate cause of justice and avoids further litigation, the amendment should be allowed. In the case of Ajendra Prasad ji N. Pande and Anr. v. Swami Keshav prakesh das ji N. and Ors. reported in AIR 2007 SC 513 the apex Court considered the scope of amendment under Order 6, Rule 17 of the CPC by adding a Proviso to the effect that amendment application should be filed prior to the commencement of the trial. v. Swami Keshav prakesh das ji N. and Ors. reported in AIR 2007 SC 513 the apex Court considered the scope of amendment under Order 6, Rule 17 of the CPC by adding a Proviso to the effect that amendment application should be filed prior to the commencement of the trial. The apex Court further held that unless the party satisfies the Court that in spite of due diligence, the issue could not be raised in a suit or a proceeding before the commencement of the trial, the amendment should not be allowed. While deciding the said case, the apex Court considered a large number of its earlier judgments wherein it had been held that the delay of its own untouched by fraud is not a ground for-rejecting the application for amendment. The provisions are procedural. Therefore, it should be considered liberally to advance the case of justice and not to retard or to defeat justice. While considering whether an amendment of pleading should or should not be allowed, the court ought to go into the merits of the amendments sought for without first allowing the amendment and framing an issue thereon and allowing both the sides to adduce evidence. 6. The doctrine of relation back which generally governs the amendment of pleadings unless for reasons the Court excludes the applicability of the doctrine. As the Defendants specifically raised objection that such an amendment, if permitted, would defeat right accrued in their favour, the Court should have excluded the doctrine of relation back in the present case. 7. In view of the above position of law, this Court directs the court below that while framing issues, it shall also examine the question of limitation from the date when the amendment application was filed. 8. With the aforesaid observation the writ petition is disposed of.