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2014 DIGILAW 62 (ORI)

Prakash Chandra Maharana v. State of Orissa

2014-01-24

B.R.SARANGI

body2014
Judgment Dr. B.R. Sarangi, J. 1. Petitioners are the legal heirs of the original plaintiff Nilamani Moharana, have filed this application assailing the orders dated 09.01.2006 and 22.01.2009 passed by the learned Civil Judge (Sr. Division), Nimapara in Title Suit No. 323/5 of 2000/1999 under Annexures-1 and 3 respectively rejecting the petition under Order-6, Rule-17 of the C.P.C. The short fact of the case in hand is that after the death of original plaintiff, Nilamani Moharana his legal heirs, the present petitioners have filed the suit T.S. No. 323/5 of 2000/1999 before the court of the learned Civil Judge (Sr. Division), Nimapara for declaration, that the plaintiff are owner in peaceful possession of the case land and for permanent injunction. During pendency of the said suit, the plaintiffs have filed a petition on 16.02.2008 and on 28.08.2008 under Order-6, Rule-17 of the C.P.C. seeking for amendment of the plaint. By way of an amendment, the plaintiff-petitioners wanted to introduce the factum of compliance of suit notice under Section 80 of the C.P.C. and to introduce the fact that the ancestral land of the plaintiff has been damaged due to super cyclone and it has been wrongly recorded in the name of the State. In the second petition, the plaintiff wanted to introduce the same fact regarding issue of notice under Section 80 of the C.P.C. and damage of the land and also prayed for amendment that in case the occupancy right of the plaintiff over the suit land fails to be proved, adverse possession be declared. The said petition was rejected vide order dated 09.01.2006 under Annexure-1 on the ground that the petitioner has prayed this court at a belated stage on expiry of ten years of institution of the suit and further that the plaintiff claimed title over the suit land based upon 'hatapatta' issued by ex-land lord who inducted the forefather of the plaintiff as tenant. Therefore, the plea of adverse possession will change the nature and character of the suit. As regards issue of notice under Section 80 of the C.P.C., which is a matter of record and therefore there is no necessity to amend the plaint on that respect. 2. The plaintiff-petitioner again filed application seeking for amendment under Order-6, Rule-17 of the C.P.C. vide Annexure-2 on 06.01.2009 to incorporate the following facts:- AMENDMENT SOUGHT FOR BY THE PLAINTIFF In para. 2. The plaintiff-petitioner again filed application seeking for amendment under Order-6, Rule-17 of the C.P.C. vide Annexure-2 on 06.01.2009 to incorporate the following facts:- AMENDMENT SOUGHT FOR BY THE PLAINTIFF In para. No. 9 of the plaint at the end and before the beginning of Para. 10 of plaint, the lines such as:- The state of Orissa has changed status of suit land in sabik plot No. 107 (one hundred seven) from Gochar land to Abadayoga Anabadi land as it is agricultural land of plaintiff sand hill has been stored on ancestral land of plaintiffs by sand wind and R.I. has intimated the plaintiffs regarding change of status of plot No. 107 (one hundred seven) from Gochar to Abadajogya Anabadi land be added. In para. 10 (ten) before the sub para. 'C and 'D', the sub para and lines such as "(C) alternatively if the plaintiffs fail to prove occupancy status of plaintiffs over the suit land, title of the plaintiff over the suit land be declared by way of adverse possession" be added. The sub para such as '(C)' and '(D)' be deleted from the sub para of prayer in para. 10 (ten) and in its place the letters "(C)" and "(F)" be added respectively." 3. The learned Civil Judge (Sr. Division), Nimapara considering the above application filed under Order-6, Rule-17 of the C.P.C. rejected the same on the ground that the plaintiff has approached the court belatedly and the delay has not been duly explained. 4. Mr. S.K. Mishra, learned counsel for the petitioners states that the delay by itself cannot be a ground to reject the petition for amendment when the proposed amendment is walking injustice to the other side and the amendment is necessary for the purpose of determining the real question of controversy between the parties and delay if any in filing the amendment petition, that can be compensated by cost. It is further stated that since there is pleadings available with regard to plea of adverse possession in paragraph-5 of the plaint, the alternative relief for adverse possession by way of amendment is permissible. He relies upon the judgment of this Court in Shri Shri Kashi Biswanath Dev represented by Laxmidhar alias Lakhan Jena v. Paramananda Routrai and others, 1985 (I) OLR 256 and the judgment of the apex Court in Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 . 5. He relies upon the judgment of this Court in Shri Shri Kashi Biswanath Dev represented by Laxmidhar alias Lakhan Jena v. Paramananda Routrai and others, 1985 (I) OLR 256 and the judgment of the apex Court in Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 . 5. Mr. Sougat Das, learned Addl. Standing Counsel appearing for the State vehemently opposed the contention raised by the learned counsel for the petitioner and supported the reasons assigned by the court below with regard to rejection of the application filed under Order-6, Rule-17 of the C.P.C. He further urged that the earlier petition filed for amendment was rejected vide order dated 09.01.2006 and the same was never challenged by the petitioner before any appropriate court of law. Therefore, the said order has become final and for the selfsame reasons, another application filed for amendment which is not maintainable. Therefore, the order of rejection passed on 22.01.2009 under Annexure-3 by the learned court below on consideration of subsequent application which was filed in Annexure-2 reiterating the same facts, on the ground that such application was filed after ten years of the institution of the suit, thereby; there is no infirmity in the order. In support of his contention, he relies upon the judgments of the apex Court in S. Malla Reddy v. Future Builders Cooperative Housing Society & other, (2013) 9 SCC 349 , Salem Advocate Bar Association v. Union of India, 2006 (1) C.J.D. (SC) 50 and in U.P. State Road Transport Corporation v. State of U.P., 2005 (1) C.C.C. 107 (SC). 6. Order-6, Rule-17 of the C.P.C. which states for amendment of the pleadings, which reads as follows:- Order-6, Rule-17. Amendment of pleading - The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties; Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.] ORISSA HIGH COURT AMENDMENT Renumber the existing Rule 17 as Rule 17(1) and add the following as Sub-rule (2). Every application for amendment shall be in writing and duly verified in the manner laid down in Rule 15 and shall state the specific amendment which is sought to be made, indicating the words or paragraphs to be added to, omitted from or substituted in place of the original pleading. 7. It is well settled principle of law that amendment of the pleadings is required to be considered liberally and technicalities of law should not be permitted to hamper the courts the administration of justice between the parties. But it is true that the amendment cannot be succumbed as a matter of right. The apex Court time and again held in L.J. Leach and Co., Ltd., and another v. Messrs. Jardine Skinner and Co., AIR 1957 SC 357 , Harcharan v. State of Haryana, AIR 1983 SC 43 and in Shikharchand Jain v. Digambar Jain Praband Karini Sabha and others, AIR 1974 SC 1178 that in the interest of justice court can allow amendment. But the basic principles which ought to be taken into consideration while allowing or rejecting the application for amendment are as follows:- (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application: 2009 (II) OLR (SC) 815. 8. Taking into account the above mentioned parameters and applying the same to the present case, it is found that the plaintiff petitioners filed the amendment application to incorporate the alternative plea of adverse possession which amounts to change in the nature and character of the suit, which is not permissible under law. Normally the amendment should be allowed when it does not change the nature and character of the suit. But in the present case, in the event the plea of adverse possession would be incorporated, it will amount to change in the nature and character of the suit. Normally the amendment should be allowed when it does not change the nature and character of the suit. But in the present case, in the event the plea of adverse possession would be incorporated, it will amount to change in the nature and character of the suit. The reasons assigned by the learned court below that there is gross delay in filing the application for amendment that ipso facto may not be a sufficient ground to disallow the amendment of pleading in view of the judgment of this Court in Shri Kashi Biswanath Dev represented by Laxmidhar alias Lakhan Jena v. Paramananda Routrai and others, 1985 (1) OLR 256. But on perusal of the impugned order, it is found that the court below rejected the petition are not only because of delay but also, on the ground that the amendment would change the nature and character of the suit. The apex Court in S. Malla Reddy v. Future Builders Cooperative Housing Society and others, 2013 (9) SCC 349 while adjudicating the matter under Order-6, Rule-16 and 17 and Order-8, Rule, 9 and Order-12, Rule-1 of the C.P.C. held that filing of subsequent petition for the same relief after 13 years when hearing of suit had already commenced amounted to abuse of process of Court. In the case of land, the relief sought for in subsequent petition under Order-6, Rule-17 of the C.P.C. having been considered in earlier petition, the subsequent application filed labeling it under Order-6, Rule-17 of the C.P.C. is absolutely misconceived one. Therefore, the learned court below is justified in rejecting the claim for amendment made by the plaintiff petitioner. So far as applicability of res-judicata is concerned, Mr. Mishra, learned counsel for the petitioner relied upon the judgment in Arjun Singh v. Mohindra Kumar and others, AIR 1964 SC 993 . The said judgment has been rendered in different context altogether. The principle laid down in the said case is as follows: Where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable, AIR 1960 SC 941 . Rel. on (Paras. 10, 11). 9. In U.P. State Road Transport Corporation v. State of U.P., 2005 (1) CCC 107 (SC), the apex Court held that res judicata applies between two stages in the same litigation. Previous petition giving finality to the dispute cannot be entertained through subsequent petition by the same court. 10. Applying the said principle in the present case, the matter which has been completely adjudicated by the learned court below passed the order dated 09.01.2006 in Annexure-1 subsequent relief on the selfsame ground in the impugned order dated 22.01.2009 in Annexure-3 is not maintainable. In that view of the matter, the learned court below passed the impugned order in Annexure-3 rejecting the claim of amendment under Order-6, Rule-17 of the C.P.C. and as such there is no infirmity in the order itself. Accordingly, the writ petition is dismissed. Since the T.S. Case is of the year 1999, pending before the learned Civil Judge (Sr. Division), Nimapara, it is directed that the learned court below shall dispose of the same within a period of six months from the date of communication of this order. Parties are directed to produce the certified copy of this order before the learned court below, who shall act upon the same. Petition dismissed.