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2015 DIGILAW 381 (ORI)

Susil Kumar Motwani v. Bebi Pattnaik

2015-06-26

SANJU PANDA

body2015
JUDGMENT : Sanju Panda, J. 1. Petitioner-plaintiff in W.P.(C) No. 1620 of 2012 has challenged the order dated 18.5.2011 passed by learned District Judge, Khurda at Bhubaneswar in Interim Application No. 76 of 2011 arising out of F.A.O. No. 47 of 2011 confirming the order dated 28.3.2011 passed by learned Civil Judge (Sr. Divn.), Bhubaneswar in Interim Application No. 49 of 2011 arising out of C.S. No. 85 of 2011 rejecting an application filed under Order, 39 Rules, 1 & 2 of the Code of Civil Procedure. Petitioner-defendant No. 3 in W.P.(C) No. 13293 of 2012 has challenged the order dated 18.5.2012 passed by learned Civil Judge (Sr. Divn.), Bhubaneswar in C.S. No. 250 of 2008 allowing an application filed under Order, 6 Rule, 17 read with Order, 1 Rule, 10 of the Code of Civil Procedure for amendment of the plaint as well as to add some of the parties as defendant Nos. 6 to 19 to the suit. Both the writ petitions arise out of two suits, parties are common in both the suits, the disputed properties are one and the same, hence the matters are heard together and disposed of by this common order. The facts stated in W.P.(C) No. 1620 of 2012 are described herewith for convenience. The present petitioner as plaintiff filed C.S. No. 85 of 2011 for permanent injunction against the opposite party No. 1 from selling, mortgaging or alienating the suit properties. In the said suit plaintiff has filed an application under Order, 39 Rules, 1 & 2 of the C.P.C., which was registered as Interim Application No. 49 of 2011. In the said interim application plaintiff has averred that he has purchased the suit properties in the year 1979 as well as in the year 1980 from the recorded tenants and he is possessing the suit land. The opposite party No. 1-defendant has no manner right, title and interest or possession over the suit land. Since the petitioner faced difficulties, he requested the husband of the defendant to look after the suit properties. It is also averred that the husband of the defendant managed to execute a power of attorney in his favour to manage the affairs. Subsequently the husband of the defendant executed a fake sale deed in favour of the defendant to fulfill their illegal gain and threatened to disposes the plaintiff from the suit land. 2. It is also averred that the husband of the defendant managed to execute a power of attorney in his favour to manage the affairs. Subsequently the husband of the defendant executed a fake sale deed in favour of the defendant to fulfill their illegal gain and threatened to disposes the plaintiff from the suit land. 2. The defendant filed her objection to the interim application. The court below by order dated 28.3.2011 dismissed the interim application with a finding that prima-facie case and balance of convenience does not lean in favour of the petitioner. The plaintiff preferred F.A.O. No. 47 of 2011 before the learned District Judge, Bhubaneswar being aggrieved with the said order. In the said appeal plaintiff-appellant also filed an application under Order, 39 Rule, 1 of the C.P.C. which was registered as Interim Application No. 76 of 2011. The appellate court by order dated 18.5.2011 rejected the interim application with a finding that appellant has not made out any prima facie case in his favour. 3. The parties have already pleaded regarding mortgaging of the property with the Bank at Bhubaneswar by a person who has no such authority to mortgage the property. The said question will be decided in the suit itself on the evidence to be adduced by the parties. In the present case the loan was declared NPA by State Bank of India as well as UCO Bank, Maitree Vihar Branch, Bhubaneswar for which C.S. No. 85 of 2011 was filed for injunction not to sale, mortgage and alienate the suit property. This Court also directed for maintenance of status quo by order dated 9.2.2012 in Misc. Case No. 1382 of 2012 arising out of W.P.(C) No. 1620 of 2012. In spite of the said order of status quo the opposite party alienated the property which will lead to unnecessary harassment and injustice to the petitioner to protect and preserve the property. While considering an application under Order, 39 Rule, 1 of the C.P.C. the Court can make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit. 4. In the case of Mohd. While considering an application under Order, 39 Rule, 1 of the C.P.C. the Court can make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit. 4. In the case of Mohd. Mehtab Khan & Others v. Khushnuma Ibrahim Khan and others reported in (2013) 9 SCC 221 wherein it was held that interim matters, even though they may be inextricably connected with the merits of the main suit, should always be answered by maintaining a strict neutrality, namely, by a refusal to adjudicate on merit. Such a stand by the courts is neither feasible nor practicable. Courts, therefore, will have to venture to decide interim matters on consideration of issues that are best left for adjudication in the full trial of the suit. The Courts must endeavour to find out if interim relief can be granted on consideration of issues other than those involved in the main suit and also whether partial interim relief would satisfy the ends of justice till final disposal of the matter. 5. In W.P.(C) No. 13293 of 2012 petitioner has averred that the present opposite party No. 1 as plaintiff filed C.S. No. 250 of 2008 for declaration and rendition of accounts valued at Rs. 9,29,666/-. It is alleged by the plaintiff that during pendency of the suit on 19.1.2012 defendant No. 6 had executed as many as 14 numbers of sale deeds in favour of 14 different persons. All the above sale deeds are outcome of the illegal sale deed dated 13.6.2006 executed by defendant No. 1 in favour of defendant No. 3 clandestinely. The defendant No. 1 taking advantage of the power of attorney and documents handed over to him without informing the plaintiff deposited the title deeds before the defendant No. 2-bank and obtained a loan from the bank for his business. The plaintiff knows about the said illegal act committed by the defendant No. 1 for the first time from the notice published by the defendant No. 2 in daily newspaper "The New Indian Express", Bhubaneswar wherein the bank called upon the defendant No. 1 on 11.1.2007 to repay the loan outstanding amount within sixty days. The plaintiff knows about the said illegal act committed by the defendant No. 1 for the first time from the notice published by the defendant No. 2 in daily newspaper "The New Indian Express", Bhubaneswar wherein the bank called upon the defendant No. 1 on 11.1.2007 to repay the loan outstanding amount within sixty days. Thereafter plaintiff immediately demanded the defendant No. 1 to return the power of attorney and documents to him but he did not listen to such demand of the plaintiff. Hence the suit. 6. During pendency of the suit plaintiff filed an application under Order, 6 Rule, 17 read with Order, 1 Rule, 10 of the Code of Civil Procedure for amendment of the plaint as well as to add some of the parties as defendant Nos. 6 to 19 to the suit. In the said application plaintiff has taken a stand that during pendency of the suit for the first time he came to know regarding some deeds alleged to have been made by defendant No. 1 in favour of his wife-defendant No. 3 and in order to grab the land of the plaintiff the alleged vendee made a fake power of attorney in favour of third person and the subsequent transfers which are relevant facts to be incorporated in the plaint by way of proposed amendment for just decision of the suit. The amendment will not change the nature and character of the suit land rather it helps for proper adjudication of the case. 7. Defendant Nos. 1 and 3 have filed their objection to the aforesaid application of the plaintiff taking a stand that the application filed by the plaintiff is not maintainable as he cannot file a petition under two provisions of law and willing to add defendant Nos. 6 to 19 as well as to add some new facts which will ultimately change the nature and character of the suit. Two separate reliefs cannot be claimed in one petition. In the present petition plaintiff has brought separate cause of action which is different from the cause of action of the main suit and is not permissible in the eye of law. The court below by order dated 18.5.2012 allowed the application with a finding that onus is on the plaintiff to prove its case and he has to set up his case. 8. The court below by order dated 18.5.2012 allowed the application with a finding that onus is on the plaintiff to prove its case and he has to set up his case. 8. The rules of procedure are intended to sub-serve justice. Where the Court is satisfied that the admission was made by inadvertence or erroneously and there was no malafide on the part of the applicant, it would be denial of justice not to permit the party to withdraw the admission or correct the mistake. No hard and fast rule can be laid down. Each case would depend on its own peculiar facts and circumstances. But in the balancing exercise what should be kept in mind is the object that is dispensation of justice and not mere technicalities which hinder its just dispensation. 9. In the case of Revajeetu Builders and Developers V. Narayanaswamy & Sons and Others reported in 2009(II) OLR (SC) 815 the Apex Court analysed the principles in respect of principle to be followed by the Court while considering the application under Order, 6 Rule, 17 of the Code of Civil Procedure. At paragraph 67 of the said judgment wherein it was described regarding the basic principles emerge which ought to be taken into consideration. One of the said principle is refusing amendment would in fact lead to injustice or lead to multiple litigation. Those basic principles are some of the important factors which shall be kept in mind while dealing with an application and those principles are only illustrative and not exhaustive. In view of the above settled principle, in the present case since the plaintiff claimed his right over the property on the basis of his purchased land by registered sale deed and in such circumstances rejecting the application for amendment amounts to injustice and lead to multiple litigation, hence rightly the court below allowed the application for amendment and directed to implead the subsequent purchasers as party to the suit. Accordingly this Court is not inclined to interfere with the impugned order in exercising the jurisdiction under Article 227 of the Constitution of India. W.P.(C) No. 13293 of 2012 stands dismissed. Accordingly this Court is not inclined to interfere with the impugned order in exercising the jurisdiction under Article 227 of the Constitution of India. W.P.(C) No. 13293 of 2012 stands dismissed. In view of the discussions made at paragraph four and five, W.P.(C) No. 1620 of 2012 is disposed of directing the parties to maintain status quo over the suit properties till disposal of C.S. No. 85 of 2011 and the suit shall be disposed of as expeditiously as possible. Parties will cooperate for early disposal of the suit.