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2008 DIGILAW 787 (ORI)

SK. AISNULLAH ` SK. AHESNULLAH v. HASRTUN KHATUN

2008-09-02

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - Since in both the writ petitions common questions are involved, they were heard together and are being disposed of by this common judgment. 2. In Writ Petition No. 1635 of 2003 challenge has been made to the order dated 13.11.2002 passed by the learned Ad hoc Addl. District Judge, Fast Track Court, Balasore in Civil Revision No. 6 of 2001 allowing the amendment by setting aside the order dated 21.10.2000 passed by the learned Addl. Civil Judge (Senior Division), Balasore in O.S. No. 85 of 1980 rejecting the amendment application. In W.P.(C) No. 8434 of 2005 challenge has been made to the order dated 21.10.2000 passed by the learned Addl. Civil Judge (Senior Division), Balasore in F.D. No. 85 of 1980-I rejecting the amendment application. 3. The facts leading to filing these cases are as follows: Opposite parties 1 and 2 in W.P.(C) No. 1635 of 2003 as the Plaintiffs filed the suit for partition and a preliminarily ex parte decree was passed on 26.4.1984 against the Defendant No. 1 Petitioner and proforma opposite parties 3 to 9 declaring l/9th share of each of the Plaintiffs in 'Kha' and 'Ga' Schedule properties. Thereafter, the Plaintiffs filed the final decree proceeding. While the final decree proceeding was continuing, on 25.2.1994 they filed an application for amendment of the plaint and the Defendant No. 1 Petitioner filed an objection thereto on the ground that it would change the nature and character of the suit and prolong the proceeding. The learned Addl. Civil Judge by order dated 21.10.2000 rejected the application for amendment.of the plaint on the ground that the Plaintiffs filed the suit on 23.4.1980 and by way of amendment they wanted to include some new properties in the schedule of properties. If Plaintiffs would be allowed to include those properties in the plaint, it would change the nature and character of the suit and Defendants would be prejudiced. The Plaintiffs filed a civil revision against the said order. The learned Ad hoc Add!. District Judge by his order dated 13.11.2002, allowed the revision and permitted the Plaintiffs to amend the plaint. The Defendant-Petitioner has filed this writ petition challenging the order dated 13.11.2002. The Plaintiffs filed a civil revision against the said order. The learned Ad hoc Add!. District Judge by his order dated 13.11.2002, allowed the revision and permitted the Plaintiffs to amend the plaint. The Defendant-Petitioner has filed this writ petition challenging the order dated 13.11.2002. However, when the Plaintiffs came to know that the civil revision was not maintainable, on 4.7.2005 they filed W.P.(C) No. 8434 of 2005 against the said order dated 21.10.2000 passed by the trial court. 4. The Learned Counsel appearing for the Petitioners submitted that the Amendment Act, 2002 of the CPC came into force on 1.7.2002. Therefore, after the amendment, the civil revision was not maintainable and as the civil revision was pending before the learned Addl. Civil Judge (Senior Division), Balasore, the Amendment Act, 2002 was applicable to such pending cases. Therefore, the impugned order is liable to be quashed. If the amendment would be allowed at the stage of final decree proceeding, Defendants would be prejudiced and they would face a prolonged trial and it would also lead to de novo trial. 5. The Learned Counsel appearing for the opposite parties submitted that after the Amendment Act, 2002 came into force, the amended provisions became applicable to the pending cases. He further stated that some of the properties were not included in the plaint schedule and when it came to the knowledge of the Plaintiffs that some of the properties were left, immediately they filed the application for amendment and the learned Addl. Civil Judge though took into consideration the said fact, on a misconception came to a finding that the amendment would change the nature and character of the suit. Since this is a partition suit and by way of amendment the Plaintiffs wanted to include some properties in the schedule of the plaint and the said amendment would not change the nature and character of the suit property and for the interest of justice and to avoid multiplicity of proceedings, the amendment should have been allowed and the Defendants could be compensated by way of cost for the delay in filing the amendment application. In support of his contention he cited the decision of the Supreme Court in the case of Beni Shankar Sharma and Others Vs. Surya Kant Sharma and Others. He also cited the decision of this Court in the case of Bhagabati Sahu and Ors. In support of his contention he cited the decision of the Supreme Court in the case of Beni Shankar Sharma and Others Vs. Surya Kant Sharma and Others. He also cited the decision of this Court in the case of Bhagabati Sahu and Ors. v. Trilochan Sahu and after him Lakhpati Sahu and Ors. reported in 1989 (II) OLR 174 wherein it has been held that the suit is deemed to be pending till the final decree is passed. The Court may take into consideration all subsequent events from time to time and make enquiries and pass preliminary decrees as those are necessary in the interest of justice and for just disposal of disputes between the parties. Properties liable for partition can be added at any stage. In the present case, since the final decree proceeding is continuing, the suit is deemed to be continuing. Therefore, properties liable for partition can be added. In the case of C.M.Vereekutty (supra), the Supreme Court held that since some of the properties had not been correctly and fully described in the original plaint schedule and due to ignorance some properties had been omitted, the High Court rightly allowed the application for amendment of the plaint. 6. In view of the above position of law, W.P.(C) No. 8434 of 2005 is allowed, the order passed by the learned Add!. Civil Judge (Senior Division), Balasore in F.D. No. 85 of 1980-1 is set aside and the amendment application filed by the Plaintiffs is allowed. 7. Since the civil revision was not maintainable against an interlocutory order, the order dated 13.11.2002 passed by the learned Ad hoc Add!. District Judge, Fast Track Court, Balasore in Civil Revision No. 6 of 2001 is non est. 8 Hence, W.P.(C) No. 1635 of 2003 is allowed in part. Final Result : Allowed