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2010 DIGILAW 454 (ORI)

Madhusudan Sahu v. Pabani Behera

2010-07-05

SANJU PANDA

body2010
JUDGMENT S. PANDA, J. : In this writ petition, the petitioners have challenged the order dated 23.7.2007 passed by the learned Civil Judge (Junior Division), Nimapara in Civil Suit No.189 of 2007 allowing the application filed by the plaintiffs for amendment of the plaint. 2. The facts, as narrated in writ petition, are as follows : The opposite parties as plaintiff filed the suit for permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiffs over the suit in any manner to which the plaintiffs are entitled on the basis that the parties are Hindus and governed under Mitrakhar School of law. The disputed properties appertaining to Sabik Plot No.4762 under Khata No.135 was recorded in the name of one Uchhaba Behera son of Parami Behera. Nitai Behera is the son of Panchu Behera. Parami and Panchu are brothers. Uchhaba had two sons, namely, Nata and Bhajani. Plaintiff No.1 is the son of Nata and plaintiff No.2 is the only daughter of Bhajani. They further pleaded that though the suit plot was recorded as Ac.0.10 decimals, the re¬corded tenants were possessing Ac.0.12 decimals of land. Nitai died issueless and before his death, he had sold away Ac.0.05 decimals on the eastern side out of the said land. During consol¬idation operation, the aforesaid plot was renumbered as Plot No.6893 measuring an area of Ac.0.06 decimals under Khata No.1103 and Plot N.6893/9459 measuring an area of Ac.0.06 decimals under Khata No.1032. The suit property in respect of Khata No.1103 has been recorded in the name of the plaintiffs and the land under Plot No.6893/9459 has been recorded in the name of Narayan, son of Uchhab. Both the plots are well demarcated. The defendants are sons of Narayan. Plot No.6902 measuring an area of Ac.0.06 deci¬mals corresponding to Sabik Khata No.4763 belongs to them. Both the plots are situated in a compact area having residential house over some portions of the suit plot and rest being used as Bari. Defendants have no right, title, interest and possession over the suit plot. Their grand- father purchased only Ac.0.05 decimals of land. However, the consolidation authorities recorded the area in favour of the defendants is Ac.0.06 decimals. Taking advantage of the said recording by the consolidation authorities, they inter¬fered with the peaceful possession of the plaintiffs for which the suit has been filed. 3. Their grand- father purchased only Ac.0.05 decimals of land. However, the consolidation authorities recorded the area in favour of the defendants is Ac.0.06 decimals. Taking advantage of the said recording by the consolidation authorities, they inter¬fered with the peaceful possession of the plaintiffs for which the suit has been filed. 3. The defendants filed their written statements travers¬ing the plaint allegations. They pleaded that the dispute with regard to the title between the parties is pending before the Consolidation Officer, Gop-Kakatpur in Remand Revision Case No.5429 of 2000. Plaintiffs have no title or possession in re¬spect Plot No. 6893. Therefore, the suit should be dismissed in respect of the said plot. Thereafter, the defendants filed an application for amendment of the written statement by incorporat¬ing the facts relating to development of the consolidation pro¬ceeding. The said application was resisted by the plaintiffs by filing objection. The plaintiffs filed an application for amend¬ment of the plaint on the same date. The defendants filed their objection. Both the applications were taken up for hearing and on 23.7.2007 the learned Civil Judge (Senior Division), Nimapara came to the conclusion that the amendment sought by both parties, if carried out, would not change the nature of the suit and would not cause irreparable loss to the other side. Hence, he allowed both the petitions subject to payment of cost of Rs.50/- to each of the parties. The defendants challenged the said order in respect of amendment of the plaint. However, the plaintiffs did not challenge the amendment sought by the defendant. 4. Learned counsel for the petitioners-defendants submit¬ted that the order passed by the Court below is a critic one and it has not taken into consideration the fact that by way of amendment, plaintiffs have changed the nature and character of the suit from suit for permanent injunction to suit for declara¬tion. In support of his contention, he cited the decisions re¬ported in 2006 (II) OLR (SC) 628 (Baldev Singh and others, etc v. Manohar Singh and another, etc.), (2009) 3 SCC 467 (Alkapuri Cooperative Housing Society Limited v. Jayantibhai Naginbhai (deceased) through LRs, (2009) 10 SCC 84 (Revajeetu Builders and Developers v. Narayanaswami and sons and others) wherein the apex Court has held that if by way of amendment the nature and charac¬ter of the suit will be changed, such amendment is not to be allowed. 5. 5. Learned counsel appearing for the opposite parties submitted that the plaintiffs are illiterate rustic villagers and in the amendment application they specifically stated that they instructed their counsel to incorporate all those facts while filing the suit. However, the counsel did not draft the same in accordance with their instructions. However, the counsel did not draft the same in accordance with their instructions. However, the said fact came to their knowledge when they were ready for hearing of the suit through another advocate. Therefore, they filed an application for amendment of the plaint to avoid multi¬plicity of litigations. They had no knowledge about the sale deed till May, 2007 and when it came to their knowledge, they took steps to amend the plaint immediately in the month of June, 2007. Therefore, there was no mala fide intention of the plaintiffs to file application for amendment and the amendment application should be considered liberally. Therefore, the Court below has rightly allowed their application. Hence, the impugned order need not be interfered with. In support of his contention, he cited the decisions reported in AIR 1983 SC 462 (Panchdeo Narain Sri¬vastava v. Km. Jyoti Sahay and another), AIR 1974 Orissa 36 (Gobinda Sahoo v. Ram Chandra Nanda) and 56 (1983) CLT 400 (Hundari Bewa v. Keluni Dei and others) wherein the Court allowed the application for amendment taking into consideration that the same was necessary for proper adjudication of the dispute between the parties. 6. The apex Court in Baldev Singh’s case (supra) held that the amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. 7. Submission of the learned counsel for the petitioners that in view of the said position, the amendment sought by the plaintiffs-opposite parties by changing the “suit for permanent injunction” to “suit for declaration of right, title, interest and permanent injunction” is not to be allowed. 8. 7. Submission of the learned counsel for the petitioners that in view of the said position, the amendment sought by the plaintiffs-opposite parties by changing the “suit for permanent injunction” to “suit for declaration of right, title, interest and permanent injunction” is not to be allowed. 8. However, in a decision reported in AIR 1922 PC 249 (Ma Shwe Mya v. Maung Mo Hnaung) it has been held that the Court should be extremely liberal in granting prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side. 9. In the present case, the plaintiffs elaborately ex¬plained how the property was purchased fraudulently without consideration and without the content of the sale deed being read over and explained to the vendor who is an illiterate man. There¬fore, the same is not binding on the plaintiffs. Suit Sabik Plot of Ac.0.10 decimals of land is the only undivided ancestral residential dwelling house of the plaintiffs which was never partitioned between Nitei and Uchhab and the purchaser Uchhab is a stranger to the family of the plaintiffs. The consolidation authorities without due inquiry wrongly recorded the plot in the name of the defendants on the basis of the said fraudulent sale deed. 10. From the above, it seems that the plaintiffs challenged the sale deed executed in favour of the defendants though ini¬tially plaintiffs filed the suit for permanent injunction with an impression that since the property belongs to them, it is not necessary to declare their title over the suit property. After filing of the written statement and at the time of hearing of the suit when the plaintiffs changed the advocate they came to know about the fact that the plaint had not been drafted as per their instructions. They being rustic villagers and plaintiff No.2 being a lady aged about 70 years, after knowing the fact that the relief of declaration of their right is to be incorporated in the plaint, they took steps to file a petition for amendment as per the advice of the newly engaged counsel. Accordingly, the appli¬cation for amendment was filed. 11. Law is well settled that to avoid multiplicity of proceedings, if the amendment is necessary for proper adjudica¬tion of the dispute between the parties, the Court can consider the same liberally. Accordingly, the appli¬cation for amendment was filed. 11. Law is well settled that to avoid multiplicity of proceedings, if the amendment is necessary for proper adjudica¬tion of the dispute between the parties, the Court can consider the same liberally. The merit of the case should not be gone into while considering the application for amendment. 12. The apex Court in Ravajeetu Builder’s case (supra) has held that while deciding application for amendments, the Court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. The basic test which must govern grant or refusal of amendment is whether such amendment is necessary for determination of real question in controversy or for proper and effective adjudication of the case. The other important condition which should govern the discretion of the Court is the potential¬ity of prejudice or injustice which is likely to be caused to the other side by the amendment. Amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. The Court is to take into account whether the proposed amendment constitutionally or fundamentally changes the nature and character of the suit. 13. In the present case, there is no mala fide intention on the part of the plaintiffs in filing the amendment application. Rather, they explained that they are rustic and illiterate vil¬lagers and their advocate did not draft the plaint as per their instructions. When the said fact came to their knowledge being pointed out by the other counsel who was engaged by them at the time when the suit was ready for hearing, they immediately took steps for amendment. Therefore, the amendment is necessary for proper adjudication of the dispute between the parties. 14. From the impugned order, it appears that the Court below has not discussed anything and in a cryptic manner allowed the application. However, this Court, as discussed above, feels that if the amendment is not incorporated in the plaint, the plaintiffs will be prejudiced as the same is a bar as provided under Order 2 Rule 2 of the Civil Procedure Code. However, this Court, as discussed above, feels that if the amendment is not incorporated in the plaint, the plaintiffs will be prejudiced as the same is a bar as provided under Order 2 Rule 2 of the Civil Procedure Code. In every suit, the whole of the claim is to be included in respect of cause of action and if the plaintiff has not included the whole claims he will be precluded from raising those claims afterwards in respect of his said claim regarding the same suit property. In the case at hand, there was no mala fide intention on behalf of the plain¬tiffs-opposite parties in filing the application for amendment. 15. Since substantial justice has been done by the Court below in allowing application for amendment, this Court is not inclined to interfere with the impugned order in exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly, the writ petition is disposed of. Petition disposed of.