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2017 DIGILAW 560 (ORI)

Subhadra Bai v. Rupa Bai

2017-05-10

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. 1. By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 30.9.2015 passed by the learned District Judge, Koraput-Jeypore in Civil Revision Petition No.2 of 2014. By the said order, learned revisional court dismissed the revision and confirmed the order dated 25.4.2014 passed by the learned Civil Judge (Sr. Divn.), Koraput in T.S. No.54 of 1994/T.S. No.19 of 2001, whereby and whereunder learned trial court allowed the application of the defendant no.2 under Order 6 Rule 17 C.P.C. for amendment of written statement-cum-counter claim. 2. This case has a chequered history. The petitioners as plaintiffs instituted the suit for declaration their right, title and interest over ‘A’ schedule property, recovery of possession of ‘B’ schedule property impleading the opposite party as well as one Moti Bai as defendants. Pursuant to issuance of summons, the defendant nos.1 and 2 entered appearance and filed written statement-cum-counter claim. During pendency of the suit, the defendant no.1 died. The suit was decreed. The counter claim was dismissed. Assailing the judgment and decree of the learned trial court, the defendant no.2, opposite party herein, filed Title Appeal No.8 of 1998 in the court of the learned Additional District Judge, Jeypore. Learned appellate court confirmed some of the findings of the learned trial court and set aside the other findings. Finally it remitted the matter back to the learned trial court and granted liberty to the appellant to carry out the amendment. Learned appellate court also directed the learned trial court to frame additional issue and granted liberty to the parties to adduce evidence. While the matter stood thus, the plaintiffs filed execution proceeding being E.P. No.74 of 2000 to execute the decree. The defendant no.2 was evicted on 12.10.2000 from ‘B’ schedule property. Defendant no.2 assailed the order in M.J.C. No.42 of 2000 under Order 21 Rule 99 read with 100 C.P.C. praying, inter alia, for restoration of possession. The same was dismissed. While the matter stood thus, the judgment passed by the learned appellate court was challenged in Misc. Appeal No.740 of 2001 before this Court, which was eventually dismissed on 24.06.2005. After remand, the defendant no.2 filed written statement-cum-counter claim claiming restitution and mesne profit and compensation. Plaintiff nos.3 to 5 filed their written statement to the counter claim. While the matter stood thus, the judgment passed by the learned appellate court was challenged in Misc. Appeal No.740 of 2001 before this Court, which was eventually dismissed on 24.06.2005. After remand, the defendant no.2 filed written statement-cum-counter claim claiming restitution and mesne profit and compensation. Plaintiff nos.3 to 5 filed their written statement to the counter claim. On 9.1.2006, the plaintiff nos.1 and 2 filed an application to permit them to sign on the written statement filed by the plaintiff nos.3 to 5. Learned trial court having rejected the same, the plaintiff nos.1 and 2 filed W.P.(C) No.4932 of 2006 before this Court. This Court set aside the order of the learned trial court on 24.06.2013. Thereafter the defendant no.2 filed an application under Order 6 Rule 17 seeking amendment of written statement-cum- counter claim. The plaintiffs filed objection to the amendment petition. Learned trial court allowed the application for amendment of counter claim. Thereafter the defendant no.2 filed consolidated written statement-cum-counter claim. On 10.09.2014, the plaintiffs filed rejoinder to the said counter claim. The plaintiffs assailed the order of the learned trial court allowing the amendment in C.R.P. No.2 of 2015 before the learned District Judge, Koraput-Jeypore. The same was dismissed on 30.09.2015. The orders passed by the learned trial court as well the revisional court have been assailed in this petition. 3. Mr. Panigrahi, learned counsel for the petitioners submitted that by the judgment dated 23.03.2001 in T.A. No.8 of 1998, learned appellate court remitted the matter back to the learned trial court for de novo hearing. After 13 years, the defendant no.2 filed an application for amendment of the counter claim. The proposed amendment will change the nature and character of the suit. 4. Per contra, Mr. Narasingh, learned counsel for the opposite party submitted that after the application for amendment of the written statement-cum-counter claim was allowed, the defendant no.2 filed a consolidated copy of the same. The plaintiffs filed rejoinder to the counter claim of the defendants on 10.09.2014. There is no whisper in the petition with regard to the filing of the rejoinder. The plaintiffs have suppressed the facts, for which, this petition is liable to be dismissed. He further submitted that learned appellate court had granted liberty to the defendant no.2 to amend the written statement-cum-counter claim. There is no whisper in the petition with regard to the filing of the rejoinder. The plaintiffs have suppressed the facts, for which, this petition is liable to be dismissed. He further submitted that learned appellate court had granted liberty to the defendant no.2 to amend the written statement-cum-counter claim. Since the further proceeding of the suit was stayed by this Court, the plaintiffs could not file the application for amendment. The proposed amendment is formal and the same will no way change the nature and character of the suit. 5. In Revajeetu Builders and Developers v. Narayanaswamy and sons and others, (2009) 10 SCC 84 , on a survey of earlier decisions, the apex Court has succinctly stated that the factors to be taken into consideration while dealing with the application for amendment. The apex Court in paragraph-63 of the report held as follows: “63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (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. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 6. On the anvil of the decision cited supra, the instant case may be examined. The judgment and decree passed by the learned trial court had been assailed by the defendant no.2 in T.A. No.8 of 1998. Learned appellate court confirmed some of the findings of the learned trial court and set aside the rest of the findings and directed the learned trial court to frame an appropriate issue and granted liberty to the parties to adduce evidence. 7. Learned appellate court confirmed some of the findings of the learned trial court and set aside the rest of the findings and directed the learned trial court to frame an appropriate issue and granted liberty to the parties to adduce evidence. 7. In course of hearing, when a query is being made by this Court as to whether it was an open remand, Mr. Panigrahi, learned counsel for the petitioners submitted that since the learned appellate court remitted the matter back to the learned trial court for de novo hearing, the same can be construed to be open remand. When the judgment of the learned trial court was impugned in the appeal, the plaintiffs levied execution. Pursuant to the order passed by the executing court, the defendant no.2 was evicted from the ‘B’ schedule land. The defendant no.2 unsuccessfully challenged the same before the learned executing court under Order 21 Rule 99 read with 100 C.P.C. in M.J.C. No.42 of 2000, but the same was dismissed on 19.3.2001. After remand of the suit, the defendant no.2 claimed restitution and mesne profit and compensation. The plaintiffs have also filed written statement to the said counter claim. The plaintiffs filed I.A. No.06/06 seeking liberty of the court to permit to sign on the counter claim. The same having been rejected, the plaintiff nos.1 and 2 filed W.P.(C) No.4932 of 2006 before this Court. The further proceeding of the suit was stayed by this Court on 11.04.2006. Finally the said petition was dismissed on 24.06.2013 with a direction to the parties to appear before the court on 11.07.2013. Thereafter, the defendant no.2 filed an application under Order 6 Rule 17 C.P.C. for amendment of the written statement. 8. On a cursory perusal of the application for amendment of the written statement, it is evident that the subsequent development of the case have been sought to be incorporated. The defendant no.2 also sought to incorporate the prayer claiming restitution and mesne profit and compensation. The proposed amendment is formal. The same will no way change the nature and character of the suit. Delay in disposal of the case/filing of application cannot be solely attributed to the defendant no.2. The plaintiffs acted as a catalyst. 9. In the wake of aforesaid, the petition is dismissed. No costs. Learned trial court shall conclude the hearing of the suit by end of September, 2017.