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2015 DIGILAW 586 (ORI)

Sk. Sanu v. Sk. Fedan

2015-10-13

AKSHAYA KUMAR RATH

body2015
JUDGMENT : Akshaya Kumar Rath, J. 1. The instant petition under Article 227 of the Constitution of India is to laciniate the order dated 25.7.2008 passed by the learned Civil Judge (Sr. Division), Bhadrak in T.S. No. 54 of 2002-I allowing the application for amendment of the written statement. 2. The petitioners as plaintiffs laid T.S. No. 54 of 2002-I before the learned Civil Judge (Sr. Division), Bhadrak for declaration of right, title, interest, confirmation of possession and permanent injunction. The substratum of the case of the plaintiffs is that they have purchased the property from defendant No. 2. After purchase, possession of the property was delivered to them. Since defendant No. 1 created disturbance in the possession of the plaintiffs, the suit is filed. Pursuant to issuance of summons, defendant No. 1 entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. It is stated that the suit schedule property, which has been purchased by the plaintiffs, is the adjoining ancestral joint family properties of defendant No. 1. The same is a fallow land and not possessed by the plaintiffs. The specific case of defendant No. 1 is that he is in possession of the land. While the matter stood thus, defendant No. 1 filed an application under Order 6 Rule 17 C.P.C. to amend the written statement with regard to incorporate the death of his father and construction of the building. The plaintiffs filed objection to the same. 3. Mr. Rath, learned counsel for the petitioners argues with vehemence that the written statement was filed on 19.7.2003. In the written statement, defendant No. 1 took a plea of adverse possession, but by the proposed amendment, he intended to insert the date of commencement of possession. According to Mr. Rath, learned counsel for the petitioners, the proposed amendment is ex facie barred by limitation and the same will change the nature and character of the suit. 4. Per contra, Mr. Nanda, learned counsel for the opposite party No. 1 supports the impugned order. 5. In Raghu Thilak D. John Vs. S. Rayappan and others, (2001) 2 SCC 472 : 2001 (II) OLR (SC) 475, the apex Court in paragraph-6 of the report held as follows: "If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. In Raghu Thilak D. John Vs. S. Rayappan and others, (2001) 2 SCC 472 : 2001 (II) OLR (SC) 475, the apex Court in paragraph-6 of the report held as follows: "If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 8(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject-matter of the issue after allowing the amendment prayed for." (emphasis laid) 6. In view of the authoritative pronouncement of the apex Court, the plea of limitation can be allowed to be raised as an additional defence by the petitioners. 7. So far as next contention of Mr. Rath, learned counsel for the petitioners is concerned, this Court is of the view that the foundational facts already exist in the written statement. The proposed amendment will not in any way change the nature and character of the suit. 8. There being no perversity or illegality in the order dated 25.7.2008 passed by the learned Civil Judge (Sr. Division), Bhadrak in T.S. No. 54 of 2002-I, this Court is not inclined to interfere with the same in exercise of its power under Article 227 of the Constitution. Accordingly, the petition is dismissed.