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2010 DIGILAW 485 (ORI)

Soudamini Chhotaray v. Surya Narayan Khuntia

2010-07-20

R.N.BISWAL

body2010
JUDGMENT R.N. BISWAL, J. — The petitioner challenges the order dated 19.09.2009 passed by the learned Civil Judge (Senior Divi¬sion), Nimapara rejecting the petition filed under Order 6, Rule 17 of C.P.C. in Title Appeal No. 64/40 of 2000 of 1996. 2. The mother of the petitioner, Subarna Bewa as plaintiff filed Title Suit No. 17/1988 in the Court of learned Civil Judge (Junior Division), Nimapara for declaration of right, title and interest and confirmation of possession and permanent injunction in respect of the suit properties as prescribed in different schedules of the plaint and other consequential reliefs. The original defendants were Bichitrananda Khuntia, Banambar Khuntia and Sri Thakur Nigamananda Saraswat Dev, out of whom, Bichitra¬nanda Khuntia and Banambar Khuntia having been expired, their legal representatives were brought on record. The suit was de¬creed on 22.2.1996 and being aggrieved with the same, the defend¬ants preferred Title Appeal No. 64/46 of 2000/1996 before the learned Civil Judge (Senior Division), Nimapara. 3. In the appellate Court when the original plaintiff-respondent detected some mistake with regard to khata numbers of the suit property, she filed a petition for amendment of the plaint so as to correct the same. The petition was rejected on 22.9.2007. Being aggrieved with the said order, she (original plaintiff-petitioner) filed the W.P.(C) No. 12557 of 2007 before this Court. As it appears during pendency of the writ petition, the original plaintiff-petition expired and in her place the present petitioner was substituted. On 24.4.2009, petitioner filed a duly constituted petition for amendment of some khata and plot numbers of the suit scheduled property. So, she filed a petition before this Court to withdraw W.P.(C) No. 12557 of 2007 with liberty to move the 2nd amendment petition. This Court vide order dated 20.8.2009 ordered that, if the petitioner so likes, she may move the second amendment petition and the learned Civil Judge, in such event shall consider the dispose of the same on its own merit and in accordance with law. 4. After hearing the counsel for the parties, the appel¬late Court rejected the petition vide order dated 19.9.2009 on the ground that there was inordinate delay in filing the amend¬ment petition, even though the mistake sought for to be corrected was known to the plaintiff from the date of filing of W.S. by the defendants. The said order is under challenge in this writ peti¬tion as stated earlier. 5. The said order is under challenge in this writ peti¬tion as stated earlier. 5. Learned counsel for petitioner submits that if the nature of the suit does not change by allowing the amendment petition, even if there is delay, the petition should be allowed. In the present case, the amendment sought for is to correct khata and plot numbers only. So, even if the amendment petition is al¬lowed, the khata and plot numbers in respect of the suit property are corrected, the nature of the suit would not change. In sup¬port of his submission he relies on the decision in the cases of Puna Bewa and others v. Dinabandhu Mangaraj and another 1984 (I) OLR 774, Dandapani Naik v. State of Orissa represented by the Collector, Puri and another, 1986 (II) OLR 391, Ramchandra Sakha¬ram Mahajan v. Damodar Trimbak Tanksale (D) and others, 2007 (II) OLR (SC) 585 and Surendra Kumar Sharma v. Makhan Singh, 2009 (II) OLR (SC) 880. 6. Learned counsel appearing for the opp. parties, on the other hand, contends that mere delay in filing a petition for amendment may not be a ground to reject it, but if there is no satisfactory explanation for delay, it should not be allowed. In support of his submission, he relied on the decision in the cases of Hindusthan Commercial Corporation, Cuttack and another v. Bank of Baroda, Cuttack, 55 (1983) CLT 219 and Ranjit Kaur v. Ajaib Singh, AIR 1984 Punjab and Haryana, 292. In the instant case, the defendant-opp. parties averred in the W.S. that there was mistake in description of khata and plot numbers in the plaint schedules, but without filing any amendment petition then and there, the plaintiff-petitioner allowed the suit to continue till it was decreed in her favour. She filed the petition under Order 6, Rule 17 of C.P.C. in the appeal without explaining such inordinate delay. So, the appellate Court rightly rejected her petition. 7. Learned counsel for the opp. parties further contends that earlier a similar petition under Order 6, Rule 17 of C.P.C. had been filed by the original plaintiff-respondent at the appel¬late stage, which was rejected on merit. Being aggrieved with the said order, she filed W.P.(C) No.12557 of 2007 before this Court, which was withdrawn by the present petitioner. So, subsequent petition under Order 6, Rule 17 of C.P.C. is not maintainable being barred by res judicata. Being aggrieved with the said order, she filed W.P.(C) No.12557 of 2007 before this Court, which was withdrawn by the present petitioner. So, subsequent petition under Order 6, Rule 17 of C.P.C. is not maintainable being barred by res judicata. As against this, learned counsel for the petitioner submitted that the petitioner withdrew the writ petition with permission to move the second amendment peti¬tion vide order dated 20.8.2009. So, it cannot be barred by res judicata. It is an admitted fact that in both the petitions under Order 6, Rule 17 of C.P.C., the petitioner sought for permission to correct khata numbers and plot numbers in the plaint schedules at the appellate stage. As per the case of the opp. parties, in their W.S. they had averred about it, but the petitioner (plain¬tiff) did not take immediate step to correct the anomalies and ultimately the suit was decreed. In the appellate stage only the petitioner (respondent) preferred to file the amendment petition. In appropriate case, the Court may at any stage of the proceed¬ings allow either party to alter or amend his pleadings for the purpose of determining the real question in controversy between the parties. Amendment petition can be allowed at the stage of first appeal and even at the stage of second appeal, if it does not prejudice the other side and the intention in filing the petition is not mala fide. The purpose behind Order 6, Rule 17 of C.P.C. is to avoid multiplicity of suits. Here, in the present case as stated earlier, the petitioner filed amendment petition seeking permission to correct khata and plot numbers of the plaint schedules. As stated earlier, the opp. parties in the W.S. stated about the mis-description of the plaint schedules properties, which implies that they were/are aware of the properties under dispute. So, they would not have been prejudiced had the amend¬ment petition been allowed. Since the amendment sought for was only to correct the Khata and Plot numbers, the nature and char¬acter of the suit would not have been changed had the amendment sought for been allowed. Since there was delay and latches in filing the amendment petition it would have been allowed on payment of cost. The aforesaid observations find support from the decisions filed by learned counsel for the petitioner. 8. Since there was delay and latches in filing the amendment petition it would have been allowed on payment of cost. The aforesaid observations find support from the decisions filed by learned counsel for the petitioner. 8. In the decision Puna Bewa and others (supra), this Court held as follows: “Order 6, Rule 17 says that amendment can be prayed for at any stage of the suit, even in appeal, second appeal and in course of further appeal to the Supreme Court. The approach should have been if by allowing the amendment the cause of jus¬tice was going to be subserved or there was going to be mayhem of justice. It simply does not occur to me how the simple prayer for correction of the erroneous description of the property without anything more could be said to alter the nature of the suit.” In this case, there was delay of three years from the date of institution of the suit by the time the amendment was filed, still then, the petition was allowed. In the decision Dandapani Naik (supra), the permission for amendment was sought for to correct the mis-description of Sabik Plot number in the second appellate stage. In that case as in the case in hand, the defend¬ants in the W.S. stated about the mis-description of plot num¬bers, still then, the amendment was allowed. In the decision Ramchandra Sakharam Mahajan (supra), the Apex Court allowed the amendment petition which had been rejected by the trial Court as well as the appellate Court and held that no doubt there had been delay in seeking amendment, but that delay would have been com¬pensated by awarding cost to the defendants. In the decision Surendra Kumar Sharma (supra), the Apex Court held as follows:- “It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the Court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the Court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amend¬ment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Even if, such an application for amendment of the plaint was filed belatedly, such belated amend¬ment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and latches in making the application for amendment cannot be a ground to refuse amend¬ment. It is also well settled that even if the amendment prayed for is belated, while considering such belated amendment, the Court must bear in favour of doing full and complete justice in the case where the party against whom the amendment is to be allowed, can be compensated by cost or otherwise.” 9. In the decision Hindusthan Commercial Corporation, Cuttack (supra) cited by learned counsel for the opp. parties, after commencement of the trial, a new story was sought to be introduced which is substantially different from the plaint filed. So, in that case, this Court held that mere delay is not sufficient to reject the prayer for amendment, but where there is no explanation for delay, merely to say that for a lawyer’s mistake a client should not suffer would not meet the ends of justice. But, in the case at hand, there is no introduction of such new case, only the khata and plot numbers are sought for to be changed. So, the said decision is not applicable to the present case. In the case Ranjit Kaur (supra), Punjab and Haryana High Court held as follows:- “After hearing the learned counsel for the parties, I am of the considering opinion that no amendment sought for by the defendant could be allowed by the lower appellate Court. No one is entitled to seek amendment of the pleadings as a matter of right; particularly in appeal. The argument than an amendment could be allowed at any stage and that the prayer to that effect could not be declined on the ground that the application made in that behalf was a delayed one, does not mean that the parties to the proceedings are entitled to seek amendment of the pleadings at any stage as a matter of right. It only means that if the Court finds that the proposed amendment is necessary for the determination of the controversy between the parties, the amend¬ment may be allowed even at a later stage.” In the case at hand, admittedly, the petitioner has won the suit. There was mis-description of the plaint schedules proper¬ties. The amendment sought for by the petitioner is necessary for determination of the controversy between the parties and to meet the ends of justice. So, the decision quoted above shall not be applicable to the present case. 10. Admittedly, the original respondent had filed a peti¬tion before the appellate Court under order 6, Rule 17 of C.P.C. which was rejected. The said order was challenged before this Court in W.P.(C) No. 12557 of 2007. While the writ petition was pending, the petitioner therein filed a petition to withdraw the same with liberty to move the second amendment petition. This Court in the said writ petition held that if the petitioner, so likes, may move the second amendment petition filed on 24.4.2009 and the learned Civil Judge in such event shall consider and dispose of the same on its own merit and in accordance with law. So, the spirit of the order shows that the second amendment petition should be considered on its own merit. In view of such order, the subsequent petition under Order 6, Rule 17 of C.P.C. cannot be said to be barred by res judicata. However, the oppo¬site parties should not suffer loss without any fault of their own. They are to be compensated for that. 11. Accordingly, the writ petition is allowed and the impugned order is set aside. The petitioner is allowed to correct the khata and plot numbers of the suit schedules properties as sought for in the amendment petition, subject to payment of cost of Rs.2,000/- to the opp. parties within a period of one month of receipt of this order. Accordingly, the writ petition stands disposed of. Petition disposed of.