Research › Search › Judgment

Orissa High Court · body

2010 DIGILAW 159 (ORI)

Satyabati Pradhan v. Shyam Sundar Nayak

2010-03-11

SANJU PANDA

body2010
JUDGMENT SANJU PANDA, J. — In this writ application, the petitioner has challenged the order dated 19.8.2008 passed by the learned Civil Judge (Senior Division), Balasore in Civil Suit No.80 of 2007-I partly allowing an application for amendment and partly rejecting an application for incorporating paragraphs 2 to 6 of the proposed amendment filed by the petitioner. 2. To appreciate the contentions of the parties, the following facts of the case are necessary to be stated. The petitioner as plaintiff filed C.S. No.80 of 2007-I before the learned Civil Judge (Senior Division), Balasore for declaration of right, title, interest, injunction and possession in respect of the suit schedule lands appertaining to Plot No.873 measuring Ac.2.45 decimals and Plot No.872 measuring Ac.0.06 decimals, in total Ac.2.47 decimals under Consolidation Khata No.355/23 in Mouza-Silada. As per the settlement record, the said lands belonged to opposite party Nos.5 to 6, who sold the same to the petitioner on payment of proper consideration by virtue of registered sale deed No.7 dated 3.1.2007 and handed over the possession of the lands in question to the petitioner from that date. The petitioner possessed the same continuously and uninter¬ruptedly. The said lands were described as ‘Sarada’ land in the registered sale deed dated 20.1.1993 when the vendor of the petitioner purchased the said lands from one Basant Kumar Nayak. The petitioner further explained that the description of the area where the lands situated was recorded as “Lunipani”. Due to such description, the Kissam of the lands was erroneously described in the plaint as “lunipani’. After purchasing the said lands, the petitioner made a palla house over Plot Nos.872 and 873 but on 14.1.2007 opposite party No.1 to created disturbance in her peaceful possession and threatened to dispossess and alienate those lands. Therefore, she filed the suit. 3. The petitioner also filed I.A. No.31 of 2007 for in¬junction under Order 39, Rules 1 and 2, CPC. On 7.4.2007 the Court below directed both the parties to maintain status quo over the suit land till disposal of the original suit. As opposite party Nos.1 to 4 tried to violate the status quo order, the petitioner filed another application for implementation of the said order and police help. On 18.4.2007, the Court below allowed the said application and directed the O.I.C., Basta Police Sta¬tion to implement the said Order. As opposite party Nos.1 to 4 tried to violate the status quo order, the petitioner filed another application for implementation of the said order and police help. On 18.4.2007, the Court below allowed the said application and directed the O.I.C., Basta Police Sta¬tion to implement the said Order. On 19.4.2007, opposite party Nos.1 to 4 forcibly caused to flow saline water into the suit lands by using diesel water pump in order to make those lands unfit for agricultural purpose. Therefore, the petitioner filed an application for mandatory injunction to drain out the saline water from the suit lands. The said application was allowed by the Court below on 8.5.2007 and as opposite party Nos.1 to 4 created disturbance, the petitioner also filed an application for police help which was allowed by the Court below on 17.5.2007. 4. Being aggrieved by the order dated 8.5.2007 opposite party Nos.1 to 4 filed F.A.O. No.207 of 2007 before this Court. On 24.7.2008, this Court disposed of the F.A.O. directing the Court below to dispose of the suit as expeditiously as possible preferably within a period of four months from the date of that order, if there was no other impediment. Further this Court directed the parties to cooperate for disposal of the suit. Prior to the said disposal, the petitioner filed an application for amendment of the plaint on 17.7.2008 to avoid multiplicity of the proceeding and incorporate certain subsequent events which are necessary to be adjudicated. In the said application the peti¬tioner sought a relief of damage of Rs.3,00,000/- from opposite party Nos.1 to 4 for the loss sustained by her due to the saline water drained into her suit lands and an alternative relief of recovery of possession. However, it was found that she was dispos¬sessed during the pendency of the suit. Due to subsequent record¬ing of the lands in favour of the petitioner by the Tahasildar by virtue of a mutation proceeding, the description of the lands was ‘Sarada’. Therefore, she wanted to substitute the word ‘Sarada’ in place of ‘Lunipani’. Opposite party Nos. 1 to 4 filed their objection on 13.8.2008 stating therein that the petitioner wanted to prolong the litigation and the proposed amendment will change the nature and character of the suit. Therefore, the same should not be allowed. Therefore, she wanted to substitute the word ‘Sarada’ in place of ‘Lunipani’. Opposite party Nos. 1 to 4 filed their objection on 13.8.2008 stating therein that the petitioner wanted to prolong the litigation and the proposed amendment will change the nature and character of the suit. Therefore, the same should not be allowed. After hearing both the parties, on 19.8.2008, the learned Civil Judge (Senior Division) allowed paragraph-1 of the proposed amendment subject to payment of cost of Rs.200/- and payment of rent to Government but rejected the rest of the pro¬posed amendment regarding damages and substitution of the word ‘Sarada’ in place of ‘Lunipani’. 5. Learned counsel for the petitioner submitted that the proposed amendment was sought due to subsequent events during pendency of the suit, the cause of action is connected to the dispute between the parties and also to avoid multiplicity of proceedings. Therefore, the Court below should have allowed the application. 6. Learned counsel for the opposite parties submitted that in order to linger the litigation the plaintiff filed the application for amendment and if the amendment to incorporate the prayer for damage is allowed, it would amount to change the nature and character of the suit. Therefore, the Court below rightly rejected the amendment application and the impugned order need not be interfered with by this Court. 7. On perusal of the plaint, written statement and amendment application and the objection thereto, it appears that flow of a saline water into the suit lands caused damage to it. The same was not fit for agricultural purpose. In the case of lands situated near the coastal area, a new tendency of doing prawn culture by using saline water has developed and for this purpose, the local people are converting the agricultural land to one for prawn culture. In the present, due to the subsequent events the plaintiff filed an application for the proposed amend¬ment to insert the additional prayer and to substitute the word ‘Sarada’ in place of ‘Lunipani’ and she explained her inadverten¬cy. 8. Order 2, Rule 3, CPC provides for joinder of causes of action and due to changed circumstances it would be necessary to add such cause of action and claim such relief in the same suit to avoid multiplicity of proceeding. 8. Order 2, Rule 3, CPC provides for joinder of causes of action and due to changed circumstances it would be necessary to add such cause of action and claim such relief in the same suit to avoid multiplicity of proceeding. The apex Court in a decision reported in AIR 1974 SC 1178 (Shikharchand Jain v. Digamber Jain Praband Karini Sabha and others), has held that ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become in appropriate, (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation; or (3) to do complete justice between the parties. 9. This Court, in a decision reported in AIR 1985 Orissa 120 (Gopal Chandra Choudhury v. The Life Insurance Corporation of India), allowed the amendment of the plaint wherein the plaintiff had made a prayer for damage to wall and floor of his building and held that the Court cannot shut its eyes to the facts that the western wall of the plaintiff’s building had a crack from the bottom to the top which, as apprehended by the plaintiff, might have been caused on account of the massive construction of the defendant’s multistoried building close to it, as well as, con¬struction of projections almost touching the plaintiff’s wall on the western side. 10. In the present case, the act of causing flow of saline water into the suit lands, as alleged by the plaintiff, during pendency of the suit cannot be a fact disconnected to the cause of action in the suit. The plaintiff got an order of mandatory injunction also and from the event of facts it appears that the plaintiff’s application for amendment was filed on 17.7.2008 prior to disposal of the F.A.O. by this Court. Therefore, it cannot be assumed that she filed an application to linger the proceeding. 11. The plaintiff got an order of mandatory injunction also and from the event of facts it appears that the plaintiff’s application for amendment was filed on 17.7.2008 prior to disposal of the F.A.O. by this Court. Therefore, it cannot be assumed that she filed an application to linger the proceeding. 11. In view of the above decisions of the apex Court as well as this Court, the impugned order passed by the learned Civil Judge (Senior Division), Balasore, if allowed to stand is an error apparent on the face of record as the Court has not considered the amendment application of the plaintiff on its proper prospective and further, it will cause injustice to the parties. Hence, this Court sets aside the impugned order and allows the amendment application of the plaintiff, subject to payment of cost of Rs.200/- (Rupees two hundred) which shall be paid to opposite party Nos.1 to 4 before the trial Court within a period of one month from the date of order. 12. The writ application is accordingly allowed. Application allowed.