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2008 DIGILAW 902 (ORI)

NEHRU SEVA SANGHA v. NARASINGHA RAM

2008-09-30

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this writ petition, the Petitioner has challenged the order dated 11.3.2004 passed by the learned Ad hoc Addl. District Judge, Khurda in Civil Suit No. 41/16 of 1999/2003 allowing the application filed by opposite party No. 1 Plaintiff under Order 6 Rule 17 of the CPC for amendment of his plaint. 2. The brief facts of the case are as follows: Opposite party No. 1 as Plaintiff filed Title Suit No. 41/16 of 1999/2003 in the court of learned Civil Judge (Senior Division), Khurda for declaration of his right, title and interest over schedule-A and C property and for permanent injunction restraining the Defendants from interfering in the possession of the Plaintiff over Schedule-A properties. Harihar Ram during his lifetime stayed in the suit premises. He died on 27.10.2002 as a bachelor leaving behind the Plaintiff as his only legal heir. Said Harihar Ram during his lifetime established a society in the name and style of 'Nehru Seva Sangha' registered under the Societies Registration Act and from its inception till death he remained as its Principal Secretary confining all the powers to him. After the death of Harihar Ram, the Plaintiff as the only heir and successor to his properties occupied the suit premises. The Plaintiff requested the employees of Defendant No. 1 to take back the papers and documents of 'Nehru Seva Sangha' from the suit premises but they took time for the purpose. On 20.1.2003, the Defendants advanced their claim over the suit properties given in Schedule-c and also threatened to take possession of the suit properties for which the Plaintiff filed the suit. In the said suit, the present Petitioner who is Defendant No. 1 filed its written statement. Plaintiff filed an application for amendment of the plaint as the Defendants claimed that late Harihar Ram created a charitable institution and donated all the properties to the said philanthropic organization for the benefit of physical handicapped and blind children where they were staying and the amendment was necessary for complete and proper adjudication of the claim of the parties. By virtue of the amendment he added some new paragraphs describing therein that the claim of the Defendants were baseless and further explained and elucidated how the Plaintiff being the brother of late Harihar Ram succeeded to his property. By virtue of the amendment he added some new paragraphs describing therein that the claim of the Defendants were baseless and further explained and elucidated how the Plaintiff being the brother of late Harihar Ram succeeded to his property. He added some more paragraphs in the prayer portion by adding the prayer that a decree for removal of the Defendants from Schedule-A property be passed failing which the same may be directed to be recovered through process of the court from the Defendants, recovery of possession and other relief and in the cause title, by adding in words and figures "Rs. 7,75,000/-" and deleting the figure "Rs. 4,85,000/-" and adding some of the documents in the list appended to the plaint. To the said application, the Defendant filed his objection stating therein that much after the filing of the written statement the proposed amendment was filed by the Plaintiff introducing facts inconsistent with the Plaintiffs pleadings and by way of the amendment, the Plaintiff wanted to change the nature and character of the suit. Therefore, the amendment sought was liable to be rejected. The trial court considering the application of the Plaintiff under Order 6, Rule 17 of the CPC and the objection thereto allowed the application for amendment of the plaint on the ground that by insertion of new paragraphs denying the plea of the Defendants, it could not be said that a completely new cause of action arose or the nature of the suit would be changed. Therefore, he allowed the amendment subject to payment of cost of Rs. 100/-. 3. The learned Counsel appearing for the Petitioner-defendant No. 1 reiterated the facts regarding maintainability of the amendment application in view of the objection filed by them to the application filed by the Plaintiff under Order 6 Rule 17 of the CPC and submitted that the amendment amounted to changing the nature and character of the suit as the Plaintiff added some more prayer to the plaint which were barred by limitation and as such, the said amendment should not have been allowed. In support of his contention, he cited a decision of the Supreme Court in the case of Bharat Karsondas Thakkar Vs. Kiran Construction Co. In support of his contention, he cited a decision of the Supreme Court in the case of Bharat Karsondas Thakkar Vs. Kiran Construction Co. and Others, wherein the apex Court has held that even if the bar of limitation is not taken into account, the Plaintiff is faced with the ominous question as to whether the amendment of the pleadings could have at all been allowed by the High Court since it completely changed the nature and character of the suit from being a suit for specific performance of an agreement to one for declaration of title and possession followed by a prayer for specific performance of an agreement of sale entered into between its assignee and the vendors of the assignees. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. As the same amounts to substantially change the nature and character of the original suit, the amendment was refused but the decision was rendered by the apex Court in that case on its own facts and circumstances and hence the same is not applicable to the present case. 4. In the present case, as the prayer in the suit is declaration of his right, title and interest and recovery of possession and damages and by the amendment, the Plaintiff only added some additional prayer, in view of the written statement filed by the Defendants, denying the plea raised by the Defendant, the said amendment did not substantially change the nature and character of the suit. Law is well settled that the amendment is to be considered liberally and while allowing the amendment merit of the case need not be gone into. Law is well settled that the amendment is to be considered liberally and while allowing the amendment merit of the case need not be gone into. Under the provision of Rule 6, Rule 17 of the CPC and the proviso thereto, the Court is conferred with power, at any stage of the proceedings, to allow alteration and amendment of the pleadings if it is of the view that such amendment may be necessary for determining the real question in controversy between the parties and the Court should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. In this regard, reference may be made to the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung reported in AIR 1922 PC 249 may be taken note of. The Privy Council observed: All rules of Courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they' should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit. " (Emphasis supplied) 5. The general principle that the amendment of the pleadings can be allowed to avoid multiplicity of proceeding. Addition of new prayer in the plaint would not be objectionable if it is necessary for proper adjudication of the dispute between the parties. 6. In the present case, the Plaintiff only denied the plea raised by the Defendant in the written statement by way of amendment. This Court in the case of Smt. Basanta Kumari Mohapatra Vs. Kuni Devi and Others, held that if the amendment sought will not change the nature and character of the suit as no substantial change is made in the basic stand taken in the plaint, the amendment is to be allowed. This Court in the case of Smt. Basanta Kumari Mohapatra Vs. Kuni Devi and Others, held that if the amendment sought will not change the nature and character of the suit as no substantial change is made in the basic stand taken in the plaint, the amendment is to be allowed. In view of the above position of law and since the amendment will not change the nature of the suit, this Court is not inclined to interfere with the impugned order as there is no perversity or illegality committed by the trial court in passing the said order. The writ petition is accordingly dismissed. No costs. Final Result : Dismissed