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2008 DIGILAW 970 (ORI)

AURAJYOTI TRUST v. KRUSHNA CHANDRA SAMANTARAY

2008-10-30

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - Challenge has been made in this writ petition to the order dated 21.12.2002 passed by the learned District Judge, Puri in Civil Revision No. 37 of 2002 setting aside the order dated 8:4.2002 passed by the learned Civil Judge (Junior Division), Puri in T.S. No. 146 of 1995 allowing Plaintiff-petitioner's application for amendment of the plaint. 2. The brief facts of the case areas follows: Petitioner as Plaintiff filed T.S. No. 146 of 1995 for permanent injunction restraining the Defendant-opposite party from interfering with the peaceful possession of the Plaintiff over the suit land and not to change the nature and character thereof. As per the pleadings of the Plaintiff, the suit schedule land originally belonged to one N.C. Palchoudhury who got the same on lease from Sankaracharya Math, Pun in the year 1940 and constructed a pucca building with pucca boundary wall demarcating the lease hold land. After his death, Smt. Kalidas Pal Choudhury who is the daughter-in- law of N.C. Palchoudhury succeeded to the suit property. She vide registered sale deed No. 2854 dated 30.6.1945 donated the land to her daughter Jogamaya Sinha who, in her turn, donated the said property to her son Rathindranath Sinha vide registered Gift Deed No. 9296 dated 12.12.1961. Said Rathindranath Sinha was a devotee of Shri Aurobinda and her mother intended to donate the said property to Shri Aurobinda Ashram. He died on 23.4.1972 before executing any deed. After his death, his widow and three sons and one daughter executed a deed of gift in respect of the said property and other disputed property in favour of Shri Aurobinda Ashram and delivered possession thereof on 24.2.1976. A school in the name of Academy of Integral Education is running over the said land. In the year 1993 the Aurojyoti Trust was formed and registered and a Memorandum of Understanding was executed by the trustee of Shri Aurobinda Ashram Trust, Pondichery authorizing the Plaintiff to utilize the donated property for propagating the ideals of the Mother and Sri Autobinda. It was further pleaded in the suit.that during Major Settlement the suit land which formed a compact block was recorded in the name of Shri Jagannath Mahaprabhu through Jagatguru Sankaracharya Niranjan Tirtha Swamy with note of possession in favour of the Plaintiff institution. It was further pleaded in the suit.that during Major Settlement the suit land which formed a compact block was recorded in the name of Shri Jagannath Mahaprabhu through Jagatguru Sankaracharya Niranjan Tirtha Swamy with note of possession in favour of the Plaintiff institution. After rent stage, the Defendant filed objection claiming Ac.0.160 decimals from the suit plot on the basis of registered sale deed No. 2508 dated 13.9.1985 executed by one Balaram Chakraborty and the Asst. v. Settlement Officer allowed the claim of the Defendant which came to the knowledge of the Plaintiff on 31.3.1990. However, the Plaintiff obtained a certified copy of the alleged registered sale deed dated 13.9.1985 and on verification found the same to be in respect of some other property. As the Defendant created disturbance in smooth functioning of the school and obtained a prohibitory order from the Executive Magistrate, Puri in Criminal Misc. Case No. 409 of 1995 which on final hearing was modified to the extent that nobody can prevent the students and teaching personnel from going to the school through the main entrance. In spite of the said order, since the Defendant created disturbance, the Plaintiff filed the suit. 3. After receiving notice, the Defendant appeared and filed his written statement stating therein that one Tara Prasad Chakravorty was the lessee of the suit land under the erstwhile landlord Sankaracharya Math, Puri. After the death of Tara Prasad Chakravorty his son Balaram Chakravorty was recognized as permanent tenant by the ex-landlord. After vesting of intermediary right in 1974, Balaram continued to possess the said land and for legal necessities he sold the same to the Defendant and one Hadibandhu Patnaik vide registered sale deed dated 19.9.1985 for a consideration of Rs. 20,000/-. Later, the purchasers found mistake in the sale deed and requested the vendor for making correction. The vendor admitted the mistake and executed the correction deed. During the Hal Settlement Operation, the Defendant produced the sale deed and the correction deed before the settlement authorities, who made due enquiry and verifying the field position prepared the ROR in favour of the Defendant. In Misc. Case No. 140 of 1995 the Defendant in support of claim filed all the documents including the correction deed with written statement. In the suit, the Plaintiff filed Misc. In Misc. Case No. 140 of 1995 the Defendant in support of claim filed all the documents including the correction deed with written statement. In the suit, the Plaintiff filed Misc. Case No. 140 of 1995 under Order 39, Rule 1 of the CPC before the learned Civil Judge (Junior Division), Puri who after hearing the parties, by order dated 21.3.1997 allowed the said Misc. Case. 4. Being aggrieved by the said order, Defendant-opposite party filed Misc. Appeal No. 49 of 1997 in which the order of the learned Civil Judge (Junior Division), Puri was set aside and the parties were directed to maintain status quo. Defendant clearly stated in his written statement as well as in the objection to the misc. case regarding the correction deed and its date. The trial of the suit commenced on 13.3.2000. Plaintiff examined seven witnesses. Plaintiff examined himself as P.W. 5 who in his deposition admitted his knowledge about the correction deed. After closure of the evidence of the Plaintiff on 19.3.2001, the Defendant examined his witness on 20.5.2001. D.W. 5 was examined on 9.10.2001 and exhibited the correction deed. On 5.3.2002, i.e. five months after closure of evidence from both sides, the Plaintiff filed a petition under Order 6, Rule 17 of the CPC to amend the plaint to the effect that the correction deed is a forged one. Defendant-opposite party filed an objection. The learned Civil Judge (Junior Division), Puri allowed the amendment of the plaint incorporating paragraph-6-A which is extracted below: 6-A. That during course of hearing of the suit and after close of Plaintiffs evidence the Defendant suddenly filed an unregistered deed and proved through the mouth of D.W.5 that the exhibit B was executed by Balaram Chakraborty and he was a witness to the said deed. This deed is a manufactured deed created at the behest of the Defendant in collusion with D.W.5. Balaram Chakraborty never purchased the stamp paper nor did he ever executed the said document. The deed was also not written on the instruction of R.N.Rath, Advocate. It is a forged and fabricated document. Balaram Chakraborty was not hurry on 19.9.85 and was present till evening at Registration Office. 5. Against the said order, Defendant filed Civil Revision No. 37 of 2002 before the learned District Judge, Puri on 20.4.2002. The deed was also not written on the instruction of R.N.Rath, Advocate. It is a forged and fabricated document. Balaram Chakraborty was not hurry on 19.9.85 and was present till evening at Registration Office. 5. Against the said order, Defendant filed Civil Revision No. 37 of 2002 before the learned District Judge, Puri on 20.4.2002. The said civil revision was admitted on 24.4.2002 and disposed of on 21.12.2002 by setting aside the order dated 8.4.2002 passed by the learned Civil Judge (Junior Division), Puri in T.S. No. 146 of 1995. 6. The Learned Counsel appearing for the Petitioner-plaintiff submitted that the CPC Amendment Act, 2002 (hereinafter after referred to as "the said Amendment Act") came into force on 1.7.2002 and as per the said Amendment Act, a civil revision is not maintainable against an interlocutory order and in view of the decision of Shiv Shakti Coop. Housing Society v. Swaraj Developers reported in 2003(I) OLR (SC) 673, the order passed by the learned District Judge, Puri is non est. Therefore, he submitted that the impugned order is liable to be set aside. 7. The Learned Counsel appearing for opposite party-defendant submitted that the learned District Judge, Puri rightly set aside the order passed by the learned Civil Judge (Junior Division), Puri as the amendment of the plaint was not legally sustainable. The Defendant in his written statement as well as objection to Misc. Case No. 140 of 1995 clearly stated regarding the correction deed and it was not a new fact and the Plaintiff was very much aware about the said fact but he did not take any step to amend the plaint earlier. He took the step five months after the closure of evidence. Therefore, the learned District Judge 'rightly set aside the order passed by the learned Civil Judge (Junior Division), Puri. He further submitted that at the relevant time when the civil revision was heard by, the learned District Judge, the legal position was not clear as to whether a civil revision was maintainable or not after the Amendment Act, 2002 came into force. Therefore, the learned District judge rightly set aside the order passed by the learned Civil Judge (Junior Division), Puri and the order passed by the learned District Judge need not be interfered with for the interest of justice. 8. Therefore, the learned District judge rightly set aside the order passed by the learned Civil Judge (Junior Division), Puri and the order passed by the learned District Judge need not be interfered with for the interest of justice. 8. Law is well settled that after the Amendment Act, 2002 came into force, the civil revision is not maintainable against an interlocutory order. However, from the facts stated above, it appears that the amendment sought by the Plaintiff was within his knowledge and the document in question was also filed by the Defendant along with his written statement. Therefore, the Plaintiff did not explain as to why he filed the amendment application at such a belated stage. From the impugned dated 8.4.2002 it appears that the learned Civil Judge (Junior Division), Puri did not discuss about all those things though in the objection filed by the Defendant he raised those facts. Therefore, for the interest of justice and fair-play, this Court remands the matter to the trial court to consider the amendment application of the Plaintiff along with the objection filed by the Defendant afresh in accordance with law. 9. With the aforesaid observation, the writ petition is disposed of. No costs.