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2014 DIGILAW 297 (ORI)

Bhramara Nayak v. Satya Badi

2014-05-01

B.R.SARANGI

body2014
JUDGMENT Dr. B.R. Sarangi, J.: The plaintiff-petitioner has filed this application assailing the order dated 13.1.2006 passed by learned Additional Civil Judge (Senior Division), Bhubaneswar in C.S No.63/367 of 2005/2002 rejecting the application filed for amendment of the plaint under Order 6 Rule 17 CPC. 2. The epitome of the fact of the case is that the plaintiff-petitioner filed C.S No. 63/367 of 2005/2002 before the learned Additional Civil Judge (Senior Division), Bhubaneswar seeking for cancellation of the registered sale deed No.411/02 dated 30.3.2002 executed before the Registering Authority, Balipatna by the defendant-Opposite Party No.1 in favour of defendants Nos. 2 to 4 and for a direction to retransfer the suit property of the plaintiff-petitioner on receipt of the consideration amount paid by him through RSD No. 411 of 2002. 3. Banchhanidhi Nayak had three sons, namely, Dibakr, Banambar and Bhramara. The three brothers were separate in mess and Banambar shifted to another ancestral house at Plot No. 901 and Dibakar and Bhramara stayed in the ancestral house over Plot No. 904 in the same village in a joint mess. Although Dibakar had adopted Satyabadi @ Gagan, he did not stay with Dibakar and daughter of Bhramara i.e. Gunjanbala and her husband Satrughana looked after Dibakar and his wife Surati who were residing with Bhramara in the said house. Gagan @ Satyabadi sold house property in his share at plot No. 904 to Bauri, Gangadhar and Buludhar, the three sons of Jayaram Nayak by Regd. Sale Deed No. 411 dated 30.03.2002. Therefore, Bhramar, the present plaintiff-petitioner filed the suit for cancellation of the sale deed and for a direction to the purchasers to retransfer the suit property to him. 4. On being noticed, the defendants entered appearance and filed written statement specifically stating that Gagan @ Satyabadi, adopted son of Dibakar and his vendees, Bhramara shifted to another house in the village abandoning the house over plot No. 904 leaving it to be enjoyed by Dibakar although the plot No. 904 was jointly recorded in the name of Bhramara and Dibakar. The landed properties were also enjoyed separately by a mutual partition and after death of Dibakar, Gagan @ Satyabadi sold the properties falling in his share vide Registered Sale Deed Nos.983 dated 22.06.1999 and 984 dated 22.06.1999 without any objection from either Bhramara or Banambar. The landed properties were also enjoyed separately by a mutual partition and after death of Dibakar, Gagan @ Satyabadi sold the properties falling in his share vide Registered Sale Deed Nos.983 dated 22.06.1999 and 984 dated 22.06.1999 without any objection from either Bhramara or Banambar. Thereafter, Gagan @ Satyabadi sold the house property in his share at Plot No. 904 to Bauri, Gangadhar and Buludhar, the three sons of Jayaram Nayak by Registered Sale Deed No. 411 dated 30.03.21002 and pleaded that the three brothers namely Dibakar, Banambar and Bhramara were separated in mess and properties by a mutual partition and that Gagan @ Satyabadi sold and delivered possession of the suit house to the purchasers and they have mutated the land house in their favour after purchasing the same. 5. When the suit was ready for hearing, the plaintiff-petitioner having realized that certain facts have not been specifically pleaded in the plaint, which have bearing on the merits of the case, filed an application under Order 6 Rule 17, CPC for the amendment of the plaint vide Annexure-1 to the writ petition. In the said amendment application the plaintiff-petitioner wanted to incorporate some new facts which were not made available earlier. Then defendants 2 to 4 filed objection to such amendment on the ground that the proposed amendment changes the very nature and character of the plaint and intended to protract the litigation for years together without proceeding with the case for disposal. As such, there is no just cause to file application for amendment at such belated stage particularly when the case is immature for trial. The proposed amendment is not necessary in the ends of justice and for the purpose of determination of the controversies or issues. 6. Learned Trial Court upon hearing the parties, rejected the said application under Order-6, Rule 17 CPC for amendment on the ground that the proposed amendment will change the nature and character of the suit and will take away the pleading of the plaintiff. Learned trial court further stated that originally the suit was filed for cancellation of sale deed and since the plaintiff wants to displace the plaint averment made earlier by way of amendment, the learned trial court was of the opinion that the amendment sought for by the plaintiff should not be allowed. 7. Mrs. Learned trial court further stated that originally the suit was filed for cancellation of sale deed and since the plaintiff wants to displace the plaint averment made earlier by way of amendment, the learned trial court was of the opinion that the amendment sought for by the plaintiff should not be allowed. 7. Mrs. S. Jena, learned counsel appearing for the plaintiff-petitioner, states that in the plaint the genealogy was given and the plaintiff-petitioner wants to give a detailed picture about the manner in which late Dibakar, the brother of the plaintiff, who was issueless, was looked after and in the proposed amendment it has also been mentioned that the son of the plaintiff-petitioner cannot transfer the suit property in favour of defendant nos. 2 to 4 and therefore, the proposed amendment will not change the nature and character of the suit and thus, the learned court below has committed gross error apparent on the face of the record in rejecting the application filed under Order-6, Rule 17, CPC. In support of her contention, she has relied upon the cases of Surender Kumar Sharma v. Makhan Singh, 2009(II) OLR (SC) 880 and Nagesh Khillo v. State of Orissa, 2012 (Supp.-II) OLR (NOC) 98. 8. Mr. S.K. Pattnaik, learned senior counsel appearing for the defendant-opposite party Nos. 2, 3 and 4 states that the application for amendment of the plaint was filed after three years i.e. on 27.09.2005 when the suit was ready for hearing and entirely a new story was sought to be introduced by way of amendment which would change the nature and character of the suit and a new prayer was also sought to be introduced. Therefore, he vehemently urged that the writ petition should be dismissed. In support of his contention he has relied upon the judgments of apex Court in Heeralal v. Kalyan Mal and others, AIR 1998 SC 618 and Puran Ram v. Bhagaban Ram, AIR 2008 SC 1960 . 9. Therefore, he vehemently urged that the writ petition should be dismissed. In support of his contention he has relied upon the judgments of apex Court in Heeralal v. Kalyan Mal and others, AIR 1998 SC 618 and Puran Ram v. Bhagaban Ram, AIR 2008 SC 1960 . 9. After hearing the contentions raised by the learned counsel for the parties and after perusing the materials available on record, it appears that the application for amendment under Order 6 Rule 17, CPC has been filed at a belated stage when the suit was ready for hearing and a perusal of the application for amendment filed under Order 6 Rule 17, CPC gives a clear picture that a new case has been made out giving a go bye to the original stand taken in the suit. That itself indicates that while seeking amendment, the plaintiff-petitioner has lost sight of the basic rudiments of law so far as amendment of plaint is concerned under Order 6 Rule 17 CPC. 10. In Vidyabai and others v. Padmalatha and another, AIR 2009 SC 1433 , the apex Court has held that it is the primary duty of the Court to decide as to whether such amendment is necessary to decide the real dispute in between the parties. Only if such a condition is fulfilled amendment is to be allowed. However, the proviso appended to Order 6, Rule 17, CPC restricts the power of the Court. It puts an embargo on exercise of its jurisdiction. The Court’s jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. Reliance has been placed by the learned counsel for the plaintiff-petitioner on Surender Kumar Sharma (supra) in which the apex Court observed that it is well settled that 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 was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of cost. Even if such an application for amendment was filed belatedly, such belated amendment cannot be refused if it is found that for deciding the real controversy between the parties, it can be allowed on payment of cost. In Nagesh Khillo (supra) this Court held that amendment sought for, if allowed, will not change the nature and character of the suit though, no doubt, it introduces a fact which was not originally stated in the plaint. If the amendment will not be allowed as proposed, the same would lead to multiplicity of the proceedings. In the alternative, if the amendment is allowed, no prejudice of an irremediable character will be inflicted upon the defendants. Therefore, the Court can issue direction for amendment of the plaint. 11. In Heeralal (supra) relied on by Mr. S.K. Pattnaik, learned Senior Counsel appearing for opposite party Nos. 2 to 4, it was held that if the amendment itself will change the nature and character of the suit the same should not be allowed. The apex Court in Modi Spinning and Weaving Mills Co. Ltd. and another v. M/s. Ladha Ram and Co., AIR 1977 SC 680 held that while granting amendment to the written statement no inconsistent and alternative plea can be allowed, which would displace the petitioner’s case and cause him irretrievable prejudice. In Puran Ram (supra) in a suit for specific performance of contract for sell for the mistake in description of suit property in the plaint, the amendment sought to rectify the mistake in the plaint as well as in the contract can be allowed in view of Section 26 of the Specific Relief Act, 1963 since the nature of suit cannot be changed by way of amendment. 12. Considering the applicability of the judgment mentioned supra to the present facts of the case, it appears that the amendment, which has been sought by the plaintiff-petitioner will change the nature and character of the suit. Though the suit was filed for cancellation of sale deed, by way of amendment the plaintiff wants to displace the plaint averment made earlier. Therefore, this court taking into account Puran Ram (supra) is of the view that the amendment sought by the plaintiff-petitioner should not be allowed. 13. Though the suit was filed for cancellation of sale deed, by way of amendment the plaintiff wants to displace the plaint averment made earlier. Therefore, this court taking into account Puran Ram (supra) is of the view that the amendment sought by the plaintiff-petitioner should not be allowed. 13. In view of the forgoing reasons, this Court finds that the trial court has not committed any illegality or irregularity in rejecting the application for amendment of the plaint under Order 6 Rule 17, CPC. Accordingly, this Court is not inclined to interfere with the impugned order dated 13.01.2006 passed by the learned 1st Addl. Civil Judge (Senior Division), Bhubaneswar in C.S. No. 63/367 of 2005/2002. The writ petition fails and the same is dismissed.