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2014 DIGILAW 706 (ORI)

Muralidhar Pradhan v. Harekrushna Seth

2014-10-29

S.PANDA

body2014
JUDGMENT S. PANDA, J. : This writ petition has been filed by the petitioner challenging the order dated 07.8.2013 passed by the learned Civil Judge (Senior Division), Sambalpur in C.S. No.33 of 2012 rejecting the application filed under Order 6, Rule 17 of C.P.C. for amendment of the written statement. 2.The facts leading to the present case are that the opposite party as plaintiff filed C.S. No.33 of 2012 before the learned Civil Judge (Senior Division), Sambalpur for declaration of right, title and interest and for permanent injunction. The plaintiff in the plaint inter alia stated that one Dura @ Draupadi Beherani, W/o late Nabi Behera was the original owner of the suit Schedule-A property. The said Dura @ Draupadi Beherani gifted the Schedule-Aproperty to one Nanku Pradhan, who did not deliver possession and both of them were in possession of the suit land. Thereafter Dura @ Draupadi Beherani and Nanku Pradhan executed Registered Sale Deed No.934 dated 06.03.1964 in favour of the father of the plaintiff and since the date of execution, his father was in peaceful possession of the suit land. Dura @ Draupadi Beherani died in the year 1969 having no issue whereas Nanku Pradhan died in the year 1983 living his widow Kairi Pradhan and the present petitioner. Kairi Pradhan died in the year 2000 living the present petitioner as the sole legal heir. The father of the plaintiff died in the year 1994 living the plaintiff as sole legal heir to succeed his property. After execution of Registered Sale Deed dated 06.3.1964, the father of the plaintiff filed Rent Case No.28 of 2012 before the Settlement Authority to record his purchased land and in the said case the vendors namely Dura @ Draupadi Beherani and Nanku Pradhan were made as opposite parties. After conducting an enquiry, the Settlement Authority by order dated 29.1.1968 rejected the prayer of the father of the plaintiff on the ground that the vendor belongs to Scheduled Tribe Community and permission was not taken from the appropriate Revenue Authority at the time of execution of the Sale Deed. However, the Asst. Settlement Officer directed to prepare the Records of Right in the name of Draupadi Behera with illegal possession of the father of the plaintiff. However, the Asst. Settlement Officer directed to prepare the Records of Right in the name of Draupadi Behera with illegal possession of the father of the plaintiff. On the basis of the aforesaid order, the Major Settlement Records of Right in respect of the purchased land of the father of the plaintiff was published in the name of Draupadi Behera with possession note of Banamali Seth (the father of the plaintiff), through illegal Sale Deed dated 06.3.1964. The plaintiff has taken a stand that he has absolute right, title, interest and possession over the suit land after death of his father and the defendant claiming himself the only surviving legal heir of the vendors trying forcibly to dispossess the plaintiff over the suit land. 2.1After receiving notice, the petitioner, who is defendant appeared in the suit and filed his written statement traversing the allegations made by the plaintiff. He has taken a specific stand that Draupadi Beherani kept Nanku Pradhan as her son to look after her during her old age and Nanku Pradhan remained in the house of late Draupadi Beherani by cultivating all her land. Later on Draupadi gifted all her properties including the suit lands in favour of Nanku Pradhan by executing Gift Deed on 15.12.1947, which was accepted by Nanku Pradhan. 2.2While matter stood thus, the Registered Gift Deed dated 15.12.1947 which was in the custody of the father of the petitioner was misplaced. Subsequently, the petitioner recovered the said Gift Deed which reveals that Draupadi had gifted away all her properties including the suit lands by executing Registered Deed of Gift in favour of his parents Nanku Pradhan and Purnamasi Pradhan. Thereafter, the petitioner filed an application under Order 6, Rule 17 of C.P.C. for amendment of the written statement. The plaintiff filed his objection to the said application stating that the application is not maintainable as it the same was filed at belated stage. The Court below after hearing the parties by the impugned order rejected the said application on the ground that it is not understandable as to why defendant kept mum regarding the said fact during filing of the written statement and the defendant remained silent over the matter for such a long time. The Court below after hearing the parties by the impugned order rejected the said application on the ground that it is not understandable as to why defendant kept mum regarding the said fact during filing of the written statement and the defendant remained silent over the matter for such a long time. 3.Learned counsel appearing for the petitioner submitted that the proposed amendment of the written statement is necessary for effective adjudication of the dispute and to avoid multiplicity of litigation, as such the impugned order need be interfered with. He further submitted that the petitioner by way of amendment of the written statement wants to correct some names and the same will not change the nature and character of the suit. 4.Learned counsel appearing for the opposite party submitted that the proposed amendment will change the nature and character of the suit. He further submitted that the petitioner has failed to explain that in spite of due diligence he could not able to file the application for amendment before commencement of trial, as such the Court below has rightly rejected the application. Hence the impugned order need not be interfered with. 5.Admittedly the suit is of the year 2012. The evidence on the side of the plaintiff has already been closed. The defendant had cross-examined P.Ws.1, 2 and 3. The petitioner at the time of filing of the written statement could have brought the facts. The petitioner has also failed to explain that in spite of due diligence he could not able to file the application for amendment before commencement of trial. Law is well settled that while considering the application for amendment the Court has to see whether the amendment is necessary to decide the real controversy, whether no prejudice or injustice caused to other party and whether the application for amendment is bona fide or mala fide. As general rule the Court should decline amendment if admission made in the pleadings particularly in the plaint sought to be omitted or get rid off as held by the Apex Court in the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others reported in 2007 (II) OLR (SC) 169. The Apex Court further held that a prayer for amendment of the plaint and prayer for amendment of the written statement stand on different footings. The Apex Court further held that a prayer for amendment of the plaint and prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counter part in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. 5.1The Apex Court in the case of Baldev Singh and others v. Manohar Singh and another reported in AIR 2006 SC 2832 held that amendment of plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the Courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than the latter case. 5.2The Apex Court in the case of Revajeetu Builders and Developers v. Narayanaswamy and sons and others reported in 2009 (II) OLR (SC) 815 held that the Courts have very wide discretion in the matter of amendment of pleadings but Court’s powers must be exercised judiciously and with great care. The decision on an application made under Order 6, Rule 17 of C.P.C. is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. While deciding applications for amendment the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. The decision on an application made under Order 6, Rule 17 of C.P.C. is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. While deciding applications for amendment the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. The first condition which must be satisfied before the amendment can be allowed by the Court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the Court’s discretion in grant or refusal of the amendment. 5.3The Apex Court in the case of Heeralal v. Kalyan Mal reported in (1998) 1 SCC 278 held that the earlier admissions of the defendant cannot be allowed to be withdrawn by way of amendment. In the present case, the defendant earlier in its written statement has admitted the facts regarding the property gifted to his father by Dura @ Draupadi Beherani and now by way of amendment he wants to withdraw such admission advancing the plea that the property was gifted to his parents. 6.In view of the aforesaid settled position of law, the admission earlier made by a party cannot not be allowed to be withdrawn and considering the application for amendment also in another angle as per the facts and circumstances of the present case as stated in the above paragraphs, the amendment is necessary for effective adjudication of the dispute between the parties. Hence, the Court below rightly rejected the application. As there is no error apparent on the face of the record, this Court is not inclined to interfere with the impugned order dated 07.8.2013 passed by the learned Civil Judge (Senior Division), Sambalpur in C.S. No.33 of 2012 in exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly, this Writ Petition is dismissed. Petition dismissed.