Research › Search › Judgment

Orissa High Court · body

2014 DIGILAW 225 (ORI)

Surendranath Dhal v. Bhaba Das

2014-04-03

SANJU PANDA

body2014
ORDER 03.04.2014The petitioners in this petition have challenged the order dated 10th March, 2014 passed by the learned Civil Judge (Junior Division), Aul in T.S. No.23 of 2003 rejecting their application under Order 6, Rule 17 of the Code of Civil Procedure to amend the plaint and for insertion of subsequent facts which developed during pendency of the suit. 2.The petitioners as the plaintiffs filed the suit for permanent injunction against the defendants from entering into their land and not to cut the chakunda tree which was standing in the eastern part of plot No.497 belongs to the plaintiffs and the said portion is a Bari. The cause of action arose as defendants tried to cut and remove the Chakunda tree. The defendants appeared and filed their written statement traversing the plaintiffs allegations and claiming that they are the owner of the adjacent plot No.498 and the said tree attains its full growth and its trunk crossed the middle boundary of both the plots i.e. Plot No.497 and 498. When the said fact came to the notice of the plaintiffs, they realizing the same filed an application on 29th January, 2014 for amendment in the plaint under Order 6 Rule-7 read with Section 151 of Code of Civil Procedure i.e. 11 years after filing of the suit. The proposed amendment is with regard to valuation of the said tree with a prayer for partition and relief of permanent injunction. In the alternative, in case it was found that any portion of the trunk of Chakunda tree in question situates over the land of the defendants, a Civil Court commissioner be deputed to distribute the logs of Chakunda tree proportionately between the plaintiffs and the defendants as per their entitlements and with a further prayer to delete paragraph 14 of the plaint and in its place the plaintiffs want to insert Court fee as per suit valuation, has been paid. 3.The defendants have filed their objections to the said application reiterating their written statement and they have said that the proposed amendment will change the nature and character of the suit. 3.The defendants have filed their objections to the said application reiterating their written statement and they have said that the proposed amendment will change the nature and character of the suit. 4.Learned counsel for the petitioners submitted that while rejecting the application for amendment, the Court below has not applied its judicial mind to the peculiar facts of the case, rather mechanically rejected it though the application for amendment is necessary as held by the Apex Court in cases of Gajanan Jaikishan Joshi v. Pravkar Mohanlal Kalwar, (1990) 1 SCC-166 and Revajeetu Builders and developers v. Narayanswami and sons and others, (2009) 10 SCC 84 . Therefore the order need be interfered with. 5.The Court below on perusal of the plaint, written statement, application for amendment passed the impugned the order. From the impugned order, it appears that the Court below rejected the application holding that it is not necessary for the purpose of determination of the real question in controversy and in case the amendment is allowed, it will cause injustice to the defendants and it will change the nature and character of the suit. 6.On perusal of materials, it reveals that the plaintiffs have clearly stated reasons in the application for amendment how the amendment is necessary for just decision of the case. The plaintiffs as well as the defendants at the time of filing of the suit independently claimed their right over Chakunda tree. However, on the perusal of the pleadings of the plaintiffs, it reveals that they have categorically stated that the tree standing over plot No.497 belongs to them at the extreme eastern side of the land and the defendants are the adjacent plot owners of the land of the plaintiffs. Admittedly, the suit was filed in the month of February, 2003 and the standing three in question has grown up in the meantime naturally, which is a subsequent event. This fact was completely lost sight of the Court below. 7.Considering the above, this Court sets aside the impugned order, remits the matter back to the Court below to consider the application afresh. This further directs the Court below to refer the dispute to the mediation centre where both the parties will appear and try for settlement of the dispute amicably and proceed with a suit thereafter in accordance with law. 8.With the aforesaid observation, the CMP as well as Misc. Case stands disposed of. This further directs the Court below to refer the dispute to the mediation centre where both the parties will appear and try for settlement of the dispute amicably and proceed with a suit thereafter in accordance with law. 8.With the aforesaid observation, the CMP as well as Misc. Case stands disposed of. Issue urgent certified copy of this order on proper application. Ordered accordingly.