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2013 DIGILAW 299 (ORI)

Bijay Kumar Routray v. Prafulla Chandra Routray

2013-08-14

S.K.MISHRA

body2013
ORDER 14.08.2013 - Heard learned counsel appearing for the parties. 2. The order dated 26.02.2013 passed by the learned Civil Judge (Senior Division), Jajpur in Civil suit No. 363 of 2002 is in question in this writ petition. The facts are not in dispute. The plaintiff filed a suit for partition, which was decreed preliminarily on 29th October, 2003. An application for final decree proceeding was filed by the plaintiff. Accordingly, in the final decree proceeding one Amin Commissioner was deputed to effect the partition. At the time of spot verification, it came to the notice that certain properties, which are not the properties of the plaintiff's family, have been wrongly included therein and some other plots have been wrongly excluded from the suit schedule. Accordingly, the Amin Commissioner could not make a division of the property in accordance with the preliminary decree. Thereafter, the plaintiff filed an application under Order VI, Rule 17 of the C.P.C., which was rejected on 26.02.2013 only on the ground that the current settlement R.O.R. has not been produced to show that the other lands which were to be amended is actually the property of the concerned party. The second part land registers filed by the plaintiff was not considered enough to come to such conclusion. 3. In course of hearing, learned counsel for the petitioner submitted that at present a major settlement is going on. In that view of the matter, it is not possible to file current settlement R.O.R. The only available document is second part land register, which is enough to show that the current settlement plot numbers as well as the sabik plots. 4. In course of hearing, learned counsel for the petitioner also relied upon the reported cases of Sk. Aisnullah @ Sk. Ahesnullah v. Hasrtun Khatun and others, 2009 (1) CLR 62, wherein this Court has held that the Court may take into consideration all subsequent events from time to time and make enquiries and pass preliminary decrees as those are necessary in the interest of justice and for just disposal of disputes between the parties. The properties liable for partition can be added at any stage. In that view of the matter, there is no bar for the learned Civil Judge from allowing the application for amendment. 5. The properties liable for partition can be added at any stage. In that view of the matter, there is no bar for the learned Civil Judge from allowing the application for amendment. 5. In course of hearing, the learned counsel for the petitioner relied upon the reported case of Jayanta Kumar Sahu v. Laxmidhar Sahu, 2013 (1) OLR 589, wherein this Court held that while the Court deciding a prayer for amendment of the pleadings, it should not adopt a hyper technical approach but should take a liberal view taking into consideration the fact that the other side can be compensated with the costs. It is further held that the Court is not required to go into the correctness or falsity of the amendment. In that view of the matter, the learned Civil Judge (Senior Division) should have allowed the application for amendment. Rejection of such a prayer for amendment resulted in non-exercise of jurisdiction conferred upon the learned Civil Judge. 6. Hence, this Court is of the considered opinion that the order dated 26.02.2013 passed by the learned Civil Judge (Senior Division), Jajpur in Civil Suit No. 363 of 2002 should be set aside and the same is therefore, set aside. The petition filed by the plaintiff-petitioner on 13.06.2006 for amendment of the plaint is allowed. The parties are directed to appear before the learned Civil Judge (Senior Division) Jajpur on 29th August, 2013. Urgent certified copy of this order be granted on proper application. Petition allowed.