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2014 DIGILAW 107 (ORI)

Mukta Rout v. Niranjan Mohapatra

2014-02-11

B.R.SARANGI

body2014
JUDGMENT Dr. B.R. SARANGI, J. : The petitioners, who are the legal heirs of the original defendant, have filed this writ petition challenging the order dated 19.03.2013 passed by the learned Civil Judge (Jr. Division), Jajpur in T.S. No.144 of 2005 rejecting the application for amendment of the written statement on the ground that the Court should be liberal in the matter of amendment of written statement. 2.The short fact of the case in hand is that the opposite party being the plaintiff filed Title Suit No.144 of 2005 in the Court to the learned Civil Judge (Jr. Division), Jajpur praying for decree of demarcation, permanent injunction and recovery of possession. One Gouranga Mohapatra has two sons, namely, Chaitanya and Nityananda while the plaintiff-Niranjan is the son of Chaitanya. Lot No.1 property belongs to him. The land of defendant adjoins to plot Nos.1674 and 1666/2742. It is stated by the plaintiff that the defendant constructed a house encroaching the suit land. The original defendant is the grand son of Sriram Rout, who has two sons, namely, Adikanda and Banchanidhi. After Adikanda, the deceased defendant got half share of the property of Sriram while Charia Dei, wife of Banchanidhi got half share of the property of Sriram. Chaitanya and Nityananda purchased A0.02.04 links and out of that they sold A0.02.03.12 biswas of land from plot No.1666/2742 towards north to the deceased defendant keeping 25 sqr. links i.e. 10 x 2½ links in the southern side. When the deceased defendant tried to encroach the land of the plaintiff-opposite party to construct house on it, suit was filed praying therein for demarcation of northern boundary by a Civil Court Commissioner and to injunct the deceased defendant not to enter upon the suit land. The deceased defendant by filing a written statement denied the plaint allegation and took the stand that he is the power of attorney holder of his father, who was old and sick and did not dispute the sale deeds dated 09.11.1960 and 05.11.1984. The specific stand of the deceased defendant is that plot No.1666/2742 measuring an area of A0.18 decimals belonged to one Sriram. Adikanda and Banchinidhi are two sons of Sriram. The specific stand of the deceased defendant is that plot No.1666/2742 measuring an area of A0.18 decimals belonged to one Sriram. Adikanda and Banchinidhi are two sons of Sriram. After the death of Adikanda and Banchanidhi, Baishnab, the deceased defendant and Charia became the owners of the above land having 50% share in it while deceased defendant was possessing northern side of the plot, Charia was possessing the southern side of the plot. Charia sold A0.02.24 kadi of land to Chaitanya and Nityananda on 09.11.1960. Thereafter they sold A0.02.03 kadi, 12 biswas land to the deceased defendant keeping 25 sqr. lins of land adjoining to their homestead plot No.1674. The deceased defendant got delivery of possession of such land and got the land demarcated on 03.03.1985 through an Amin, namely, Guru Charan Jena in presence of the father of the plaintiff and their Amins, namely, Kartik Ch. Ojha and other witnesses and constructed a pucca boundary wall for identity. The further stand of the deceased defendant is that he was neither encroached the land of the plaintiff nor constructed any boundary wall on 22.6.2005 encroaching upon the land of the plaintiff-opposite party, rather the plaintiff-opposite party broke the wall of the defendant on 15.7.2010 for which the deceased defendant prayed for dismissal of the suit with cost. 3.On the basis of the pleadings available on record, the trial Court framed six issues, examined four witnesses from each side and considering the documents of the parties, decreed the suit directing the defendant to remove the construction and obstruction from the suit land with a further direction to deliver vacant possession of the suit land and in the event of failure on the prayer of the plaintiff-opposite party, the Court would appoint a Civil Court Commissioner for demarcation of the suit land and recovery of possession. 4.Being aggrieved by such judgment and decree passed by the learned Civil Judge (Jr. Division), Jajpur in T.S. No.144 of 2005, the deceased defendant preferred an appeal before the learned District Judge, Jajpur in R.F.A. No.21 of 2011. The suit was decreed on 27.11.2010. Before filing the appeal, the original defendant Baishnab Rout expired on 12.12.2010. 4.Being aggrieved by such judgment and decree passed by the learned Civil Judge (Jr. Division), Jajpur in T.S. No.144 of 2005, the deceased defendant preferred an appeal before the learned District Judge, Jajpur in R.F.A. No.21 of 2011. The suit was decreed on 27.11.2010. Before filing the appeal, the original defendant Baishnab Rout expired on 12.12.2010. Therefore, the present petitioners being the legal heirs of Baishnab Rout, the original defendant preferred an appeal bearing R.F.A. No.21 of 2011 on the ground that the learned trial Court committed error in accepting the oral evidence of P.W.4-Amin and Ext.5, the report of the Amin and by wrongly appreciating and accepting the evidence of P.Ws as well as the Amin Report passed the decree. 5.The learned appellate Court, namely, the District Judge, Jajpur heard the matter at length and disposed of the appeal by the following order :- “Here in this case, there is no dispute on title of the suit land. But there is dispute on identity and possession of the land in question. Such dispute cannot be solved on going through the document relied upon by the parties nor depending upon the reports of the private Amin. As such, there is absolute necessity for the Court to depute a Civil Court Commissioner to the field to identify the transacted land of 1960 and 1984 and of the balance land of 1960 sale deed after transfer of the land in 1984. After such identification of the above immovable property, it can be ascertained as to whether there is any encroachment or encroached construction by the defendant in to the land of the plaintiff. Hence, it is a fit matter where the case is to be remanded back to the learned trial Court for deputation of the Civil Court Amin Commissioner in order to identify the land and to demarcate the transacted lands as well as the balance land in question so as to resolve the civil dispute between the plaintiff and defendant. Hence, it is ordered : ORDER The appeal is allowed on contest against the respondent but without cost. The impugned judgment followed by the decree dated 27.11.2010 and 12.12.2010 respectively are set aside. Hence, it is ordered : ORDER The appeal is allowed on contest against the respondent but without cost. The impugned judgment followed by the decree dated 27.11.2010 and 12.12.2010 respectively are set aside. Both parties are directed to appear in the trial Court on 24.01.2013 and to maintain status quo in respect of their possession of the land in the field as on today till disposal of the case afresh by the learned trial Court. Accordingly the case is remanded back to the learned trial Court with a direction to re-open and retry the case on remand by readmitting the suit in its original number in the register of Civil Suit and to proceed in accordance with the observation made above so as to complete the trial within four months from the date of receipt of the L.C.R. 6.In view of the judgment passed by the appellate Court, the matter was remitted back to the learned Civil Judge (Jr. Division), Jajpur and the legal heirs of the defendants, the present petitioners herein filed application for amendment under Order-6, Rule-17 of the C.P.C. to incorporate in the written statement as per the schedule of amendment filed in the petition under Annexure-6, which reads as follows :- “Schedule of Amendment At the end of the Addl. Written statement the following be written :- “Alternatively, if any portion of the suit land is within the boundary wall or at the northern side of the boundary wall, then as the Defendant has been possessing the same as of right, openly, peacefully within the knowledge of the plaintiff since 3.3.85 and has acquired title by way of adverse possession and ouster and the title of the plaint if any over it has already been extinguished by the date of the suit.” 7.The plaintiff-opposite party raised objection to such amendment vide Annexure-7 and categorically stated that the proposed amendment of the written statement will change the nature and character of the suit and will introduce a new case and as such law is well settled that no application for amendment shall be allowed after the trial has commenced. 8.Considering the contention raised by the parties, the learned Civil Judge (Jr. Division), Jajpur passed the impugned order on 19.3.2013 rejecting the application for amendment of the written statement filed by the legal heirs of the deceased defendant, the present petitioners herein. 8.Considering the contention raised by the parties, the learned Civil Judge (Jr. Division), Jajpur passed the impugned order on 19.3.2013 rejecting the application for amendment of the written statement filed by the legal heirs of the deceased defendant, the present petitioners herein. The reasons assigned for rejection of the application by the learned Civil Judge (Jr. Division), Jajpur are that the suit was filed after the Civil Procedure Code Amendment Act, 2002 came into force. Any party intend to amend his pleading must have to establish that he could no insert the same prior to the commencement of the hearing in spite of his due diligence. It is stated that in this case the legal heirs of the deceased defendants have not mentioned any fact to show that in spite of their due diligence they could not aver the pleading before commencement of the hearing. In absence of the same, the trial Court rejected the application filed under Order-6, Rule-17 of the C.P.C. for amendment of the written statement. 9.Mr. P.K. Rath, learned counsel for the legal heirs of deceased defendant, petitioners herein states that after the remand was made by the learned District Judge, Jajpur, the same being open remand and the trial having not commenced, the legal heirs of the deceased defendant have got every right to make necessary amendment of the pleadings in the written statement. He further states that the legal heirs of the deceased defendant being at the stage of appeal, proviso to Order-6, Rule-17 is not applicable as they were not parties at the stage of filing of the written statement or the commencement of hearing. It is further stated that since it is an open remand of suit and hearing has not commenced, the application filed for necessary amendment is well within the jurisdiction of the Court. Therefore, the learned Civil Judge (Jr.Division), has committed error apparent on the face of the record and, therefore seeks for interference of this Court. To substantiate his contention, he relies upon the judgments of the apex Court in Baldev Singh and others v. Manohar Singh and another, AIR 2006 SC 2832 and in Vidyabai and others v. Padmalatha and another, 2009 (I) Supreme 238 and also judgments of this Court in Smt. Basanti Satpathy and two others v. Rakesh Kumar Satpathy, 2003 (I) OLR 516 and in Abdul Razak (D) through L.Rs. and others v. Mangesh Rajaram Wagle and others, 2010 (1) CLR (SC) 291. 10.Mr. P. K. Mohanty-2, learned counsel for the plaintiff-opposite party strenuously opposes the contention raised by the learned counsel for the legal heirs of the deceased defendant, petitioners herein, and specifically states that since the evidence of both the parties was closed on 27.12.2010 as per the provisions contained in the Civil Procedure Code amendment Act, 2002, the petition filed for amendment of the written statement is not permissible under the law. More so, the proposed amendment will change the nature and character of the suit land and after remand, the learned trial Court is to carry out the observation and direction given by the learned appellate Court instead of rehearing the matter once again since remand has been made by the appellate Court for a specific purpose. It is further stated that the legal heirs of the deceased defendant cannot take a different plea than the plea taken by their father in the original written statement and they can only take the plea supporting the plea of their father and taking of different plea by the legal heirs than that taken in the original written statement is not permissible under the law. It is stated that at the time of admission, notice was issued on the ground that ratio decided in Raghunath Dey alias Ray (dead) after him Smt. Puspa Dutta and others v. Mahammad Usman Khan, 95 (2003) CLT 26 is applicable but on perusal of the same it appears that the same is not applicable to the facts of the present case. Accordingly, Mr. Mohanty, seeks for dismissal of the writ petition. 11.Considering the above mentioned fact and circumstances as well as the materials available on record and after hearing the learned counsel for the parties, it is to be considered. (i)Whether the legal heirs of the deceased defendants, who have been admittedly impleaded as parties at the appellate stage can take a different stand than that of the stand taken by their father in the original suit and. (ii)Whether the learned appellate Court had made a open remand or a specific remand to the learned Civil Judge, (Jr. Division), Jajpur for fresh adjudication of T.S. No.144 of 2005. 12.The admitted fact of the case in hand is that the decree was passed by the learned Civil Judge, (Jr. (ii)Whether the learned appellate Court had made a open remand or a specific remand to the learned Civil Judge, (Jr. Division), Jajpur for fresh adjudication of T.S. No.144 of 2005. 12.The admitted fact of the case in hand is that the decree was passed by the learned Civil Judge, (Jr. Division), Jajpur directing the defendant to remove the construction and obstruction from the suit land with a further direction to deliver the vacant possession of the suit land and in the event of failure on the part of the plaintiff-opposite party, the Court would appoint a Civil Court Commissioner for demarcation of the suit land and recovery of possession. The defendant before preferring the appeal against the judgment of the learned Civil Judge (Jr. Division), Jajpur, expired. Therefore, the legal heirs of the deceased defendant, namely, the present petitioners preferred the appeal before the learned District Judge in R.F.A. No.21 of 2011. After due adjudication, the first appellate Court came to a definite finding that there is no dispute on title of the suit land but there is dispute on identity and possession of the land in question. Such dispute cannot be solved on going through the document relied upon by the parties not depending upon the reports of the private Amins. As such, there is absolute necessity for the Court to depute a Civil Court Commissioner to the field to identify the transacted land of 1960 and 1984 and the balance land after transfer of the land in 1960 and 1984. After such identification of the above immovable property, it can be ascertained as to whether there is any encroachment or encroached construction by the defendant on the land of the plaintiff-opposite party. After so holding, the matter was remitted back to the learned trial Court for deputation of the Civil Court Amin Commissioner in order to identify the land and to demarcate the transacted lands as well as the balance land in question so as to resolve the civil dispute between the plaintiff-opposite party and the defendants-petitioners and accordingly, the judgment passed by the learned Civil Judge, (Jr. Division), Jajpur on 27.11.2010 and 12.12.2010 were set aside and both the parties were directed to appear in the trial Court on 24.01.2013 and to maintain status quo in respect of their possession of the land in the field as on date till disposal of the case afresh by the trial Court. The case has been remitted back to the trial Court with a direction to re-open and retry the case on remand by readmitting the suit in its original number in the register of civil suit and to proceed in accordance with observation made so as to complete the trial within four months from the date of receipt of the LCR. 13.The tenor of the order passed by the learned appellate Court clearly indicates that it is a specific remand in view of the fact that unless there is proper identification of immovable property by a Civil Court Amin Commissioner, the civil dispute between the parties cannot be resolved. Therefore, for a specific purpose and for a specific object, the matter was remitted back to the learned Civil Judge, (Jr. Division), Jajpur by the appellate Court i.e. learned District Judge, Jajpur for adjudication. The contention raised by Mr. Rath, learned Counsel for the petitioners is that it is an open remand but perusal of the order itself clearly indicates that it is a specific remand in view of the fact that question of adducing further materials at this stage does not arise and it cannot be stated it is open to that the parties to have fresh trial as if it is a new suit after the remand was made by the appellate Court. Rather the learned Civil Judge, (Jr. Division), Jajpur has to comply the direction/observation of the learned appellate Court and proceed with the suit for hearing. At this stage, the legal heirs of the deceased defendants, the present petitioners filed application under Order-6, Rule-17 of the C.P.C. seeking for amendment of the written statement filed by the original defendant but the same has been rejected on the ground that trial having been commenced, the defendants have not been able to show that in spite of due diligence they could not take the pleading sought to be introduced by way of amendment. Therefore, the petitioners assail the same in the present writ petition. 14.Mr. Therefore, the petitioners assail the same in the present writ petition. 14.Mr. P.K. Rath, learned counsel for the petitioners laid emphasis on a judgment of the apex Court in Baldev Singh and others v. Manohar Singh and another (supra). In paragraph-17 of the said judgment, the apex Court has held that they do not find any reason to reject the application for amendment of written statement in view of proviso to Order-6, Rule-17 of C.P.C. which confers wide power and discretion on the Court to allow and amend the petition at any stage of the preceding. Mr. Rath, learned counsel states that after the remand, the trial having not commenced, there was no justification on the part of the learned Civil Judge, (Jr. Division), Jajpur to reject the application for amendment of written statement filed by the legal heirs of the deceased defendant in view of the law laid down by the apex Court in Baldev Singh and others (supra). 15.The matter was heard and judgment was reserved on 02.01.2014 enabling the learned counsel for the parties to file their written notes of submission and citations by 03.01.2014. On 03.01.2014, Mr. Rath, learned counsel for the petitioners by filing written notes of submission and citations brought to the notice of the Court the judgment of the apex Court in Baldev Singh and others v. Manohar Singh and another, AIR 2006 SC 2832 which has been overruled by the apex Court in Vidyabai and others v. Padmalatha and another, 2009 (1) Supreme 238 . He specifically referred to paragraph-12 of the said judgment wherein apex Court held that the observation made in Baldev Singh and others (supra) is not an authority on the question. The judgment reported in Baldev Singh and others (supra) is distinguished in Vidyabai and others (supra). However, he relied upon the judgment of this Court in Smt. Basanti Satpathy and tow others v. Rakesh Kumar Satpathy, 2003 (I) OLR 516 wherein this Court held that : “Trial should be given a restricted meaning namely when the taking of evidence has started and where the examination witnesses has commenced. 16.Therefore, in the present case, after remand since evidence has not been started and examination of witnesses has not commenced, the trial has not commenced. Hence, the application filed for amendment of written statement under proviso to Order-6, Rule-17 should not have been rejected on that count. 16.Therefore, in the present case, after remand since evidence has not been started and examination of witnesses has not commenced, the trial has not commenced. Hence, the application filed for amendment of written statement under proviso to Order-6, Rule-17 should not have been rejected on that count. To such contention, it is stated that once the matter has been remitted back by the learned appellate Court for a specific purpose with a specific observation for adjudication, question of taking of any evidence or examination of witnesses after remand does not arise. Rahter, the learned Civil Judge (Jr. Division) has to proceed from the stage of the suit for which the remand has been made by the appellate Court. To mean in the present case, he has to depute a Civil Court Amin Commissioner for identification of the land and demarcation thereof. 17.Mr. P.K. Rath, learned counsel for the petitioner relies upon the judgment of the apex Court in Abdul Razak (D) through L.Rs. and others v. Mangesh Rajaram Wagle and others, 2010 (1) CLR (SC) 291 wherein the question of the right of the substituted legal representatives to set up their own claim has been dealt with. In paragraphs 23 and 26 of the said judgment it has been held that a substituted legal heirs is permitted to take a plea which is in consonance with the pleadings of the original defendants and the original defendants could have been taken in written statement. 18.The legal heirs of the deceased defendants by way of amendment want to bring certain facts which is not in consonance with the pleadings of the original defendant and more so this point has not been canvassed before the learned Civil Judge (Jr. Division), Jajpur for his consideration. However, when the question has been raised, this Court is of the view that applying the ratio of Abdul Razak (D) through L.Rs. and others (supra), the legal heirs of the deceased defendants cannot take a plea contrary to the pleadings available on record, rather the pleading should be in consonance with the pleading of the original defendants. In that view of the matter, the contention raised by Mr. Rath, learned counsel for the petitioners seeking for amendment of written statement fails. and others (supra), the legal heirs of the deceased defendants cannot take a plea contrary to the pleadings available on record, rather the pleading should be in consonance with the pleading of the original defendants. In that view of the matter, the contention raised by Mr. Rath, learned counsel for the petitioners seeking for amendment of written statement fails. 19.In view of the aforesaid facts and circumstances of the case and the law governing the field, this Court finds no merit in the writ petition and accordingly the same is dismissed. No order as to cost. Petition dismissed.