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2017 DIGILAW 885 (ORI)

Binodini Sadual v. Ranjit Kumar Mohanty

2017-08-16

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This Civil Miscellaneous Petition involves the order dated 26.7.2016 passed by the Civil Judge (Sr. Divn.), Baripada appearing at Annexure-3 and the order dated 11.4.2017 passed in Civil Revision No.5/2016 by the 1st Additional District Judge, Baripda, vide Annexure-4. This Court finds, the order dated 26.7.2016, vide Annexure-3 involves an application for amendment of the pleadings at the instance of the plaintiff thereby allowing the amendment of plaint with award of cost of Rs.1000/-whereas the order dated 11.4.2017 passed in Civil Revision No.5/2016 appearing at Anexure-4 dismissing the Civil Revision against the order involving Annexure-3 on the ground of maintainability. 2. Short background involved in the case is that O.P.1-plaintiff filed T.S. No.65/98 for a judgment and decree of eviction against defendant nos.1 to 3 from ‘B’ & ‘C’ Schedule land and demolition of the construction in the Schedule ‘D’ land subsequently registered as C.S. No.65/98. It appears, pending suit for final adjudication, there has been number of amendments and ultimately an amendment involved herein was brought by way of an application dated 20.4.2016 after long eighteen years of the institution of the suit by O.P.1 bringing the following proposed amendments :- “Proposed Amendment That in para-12 in the prayer portion after para-a (ai) be added a(i). That the plaintiffs right title and interest over Schedule-A land be declared. That in para-10 after the word valued at Rs.60,000/-the rest be deleted and in its place the following be added. “But as it is a suit for declaration of title and eviction ACF worth of Rs.2984.25 has been paid”. That in Schedule-A in the second line after the word name of before the word in Mouza-Balarampur, the name wrongly typed as Durga Prasad Tiwary be deleted and in its place “Ranjit Kumar Mohanty” is to be included. The sketch map inadvertently not given is given for better appreciation of this case. That in Schedule-B the description part is to be deleted and in its place the following be added. The sketch map inadvertently not given is given for better appreciation of this case. That in Schedule-B the description part is to be deleted and in its place the following be added. “House standing over plot No.667 which is in illegal occupation of defendant No.1.” In filing the application under Order 6 Rule 17 of C.P.C., O.P.1-plaintiff in paragraph-2 of the application contended that the defendants while filing the written statement have categorically taken a stand that the vendor of the plaintiff had no sailable right on the date of sale and accordingly has challenged the title of the plaintiff and his vendor and further contended that the requirement of amendment is based on the above stand of the defendants, particularly, challenging the title of the plaintiff in the written statement filed by them. To their objection, the defendant nos.1 & 2 objected the move for amendment on the premises that the amendment being filed after eighteen years of filing of the suit is not maintainable both in law and fact, there being no occasion for the plaintiff to file amendment at this point of time, the attempt for present amendment is only to linger the disposal of the suit. It is also contended by the defendant nos.1 & 2 that since the amendment with regard to declaration of right, title and interest involving Schedule A land, the amendment application is claimed to be not maintainable, the amendment leads to change the nature and character of the suit, the materials and the drawing being available from the threshold, it is contended that the plaintiff is not permitted to bring the facts and the sketch map through the amendment application after long gap of eighteen years. It is ultimately contended that in the event the amendment is allowed, it will lead to change the nature and character of the suit and further, there cannot be any effective adjudication of the prayer involved therein in absence of the co-sharers. It is also contended that the amendment is also opposed for no materials supporting in favour of the plaintiff accompanying the amendment application. 3. Learned trial court considering the rival contentions of the parties and following catena of decisions referred to at the time of hearing of the application for amendment allowed the amendment but however subject to grant of cost to mitigate the sufferings of the defendants. 4. 3. Learned trial court considering the rival contentions of the parties and following catena of decisions referred to at the time of hearing of the application for amendment allowed the amendment but however subject to grant of cost to mitigate the sufferings of the defendants. 4. Assailing the impugned order, Dr. A.K. Mohapatra, learned senior counsel for the petitioner reiterating the stand already taken in the court below submitted that the Civil Judge (Sr. Divn.), Baripada allowing the amendment without affording opportunity to the defendants and filing additional written statement is erroneous. Dr. Mohapatra further submitted that the plaintiff has already undertaken several amendments and the plaintiff was also otherwise precluded from bringing the pleadings and prayer made therein for his not bringing the same in the earlier occasions. Dr. Mohapatra alleged that the amendment being filed after lapse of eighteen years of filing of the suit without explaining the delay for bringing such amendment that too without explaining his bona fide for not bringing the same earlier could not be properly assessed by the trial court. Referring to the decisions involving the case in Shiv Gopal Sah alias Shiv Gopal Sahu vs. Sita Ram Saraugi & others, AIR 2007 SC 1478 , P.A. Ahammed Ibrahim vs. Food Corporation of India, AIR 1999 SC 3033 , Ramnik Vallabhdas Madhvani & others vs. Taraben Pravinlal Madhvani, AIR 2004 SC 1084 , Dr. Laxminarayan Mohapatra vs. Sihini Bahar Sur & others, (91) 2001 CLT 144, Bhramara Nayak vs. Satya Badi & others, 2014 (Suppl.2) OLR 658, Dr. Mohapatra, learned senior counsel for the petitioner ultimately prayed for interference in the impugned orders and setting aside the same. 5. To his opposition, Sri P.K. Rath, learned counsel for the O.P., plaintiff in the court below answering on the question of delay in filing the amendment application contended that for the filing of the additional written statement by defendant no.2 on 22.9.2015 brought to the notice of the petitioner for the first time about the challenge to the mutation record and disputing the title of the plaintiff gave rise to the O.P.1 to bring the amendment application. On the merit of the amendment application, Sri Rath contended that the amendment sought for since is in consistence with the averments in the existing plaint at paragraph-8, there being no other property involved or introduction of new property, the amendment sought for is within the permissible limit. It is further contended by Sri Rath that since the trial has not commenced, no prejudice is to be caused to the defendants in the event the amendment is allowed. It is lastly contended by Sri Rath that since the plaintiff is entitled to bring the independent suit claiming right, title and interest over the disputed property, rejection of the amendment application and forcing the plaintiff to go for independent suit will not only lead to multiplicity of litigations but will also linger the adjudication of the suit at hand. Referring to decisions involving the case in Abdul Rehman & another vs. Mohd. Ruldu & others, (2012) 11 SCC 341 , Basant Balu Patil & others vs. Mohan Hirachand Shah & others, (2016) 1 SCC 530 , Rajesh Kumar Aggarwal &others vs. K.K. Modi & others, (2006) 4 SCC 385 , State Bank of Hyderabad vs. Town Municipal Council, 2007 (1) OLR (SC) 406, Sampath Kumar vs. Ayyakannu & another (2002) 7 SCC 559 , Surendra Kumar Sharma vs. Makhan Singh 2009 (2) OLR (SC) 880, Sri Rath contended that the decisions referred to herein above have great bearing to the case of the petitioner and therefore, prayed for rejection of the Civil Miscellaneous Petition. 6. Considering the rival contentions of the parties and going through the pleadings available on record, this Court finds, there is no dispute that the suit was originally filed in the year 1998 involving a suit for eviction alone being registered as T.S. No.65/98, which was subsequently re-numbered as C.S. No.65/98 on the file of Civil Judge (Sr.Divn.), Baripada. The plaint in original stage was simply a suit for eviction specifically with the following prayer :- “Therefore, the plaintiff prays :- (a) That, the defendant no.1 to 3 be evicted from the suit house described in schedule ‘B’ &’C’ of the plaint and so also defendant no.4 be directed to demolish the boundary wall constructed over schedule ‘D’ land and to give vacant possession to the plaintiff. Any other relief or reliefs as per law and equity be passed.” Looking to the plaint averments in its original form from paragraphs-2, 3, 4, 6, 7, 8 & 8(a), this Court finds, theplaintiff had a clear case of his right and title over the disputedproperty. Similarly from the reading of the averments in thewritten statement filed by the defendant no.1 in the year 1999, this Court finds, there is clear denial to the transfer of the property in favour of the plaintiff. There has been specific response denying the possession of the vendor of the plaintiff as appearing in paragraph-7 of the written statement filed in 1999. There appears, there is also a denial of the induction of defendant no.3 as tenant by Durga Prasad Tiwari. It is also claimed, there has been correct recording of the possession in favour of the defendants by the Settlement Authority. There is also serious objection with regard to execution of sale deed in faovur of the plaintiff appearing at paragraph-10 of the written statement filed in the year 1999. From whole reading of the written statement averments indicated herein above, this Court finds, there involves a strong challenge to the right and title of the plaintiff over the disputed property since 1999. The pleading and counter statement may be in the preliminary stage and the actual fact can be ascertained only after the trial involving the suit is concerned. 7. Considering the prima facie case and looking to the pleading in the plaint and the averments in the written statement, this Court is satisfied with the plea of Dr. Mohapatra, learned counsel for the petitioner that the amendment involving the right, title and interest of the property at the instance of the plaintiff has been brought after long gap of eighteen years and disbelieve the plea of the plaintiff that the plaintiff has for the first time came to know the challenge to the right, title and interest of the plaintiff from the additional written statement filed by defendant no.2 in the year 2015, as such statement in the additional written statement is only a reiteration of the facts already there in the written statement. It appears, the defendant no.2 since filing of the written statement in the year 1999 has a strong challenge to the right and title of the plaintiff. 8. It appears, the defendant no.2 since filing of the written statement in the year 1999 has a strong challenge to the right and title of the plaintiff. 8. Considering the submission of Sri Rath, learned counsel for the O.Ps. that the amended provision of Order 6 Rule 17 of C.P.C. requiring satisfaction of due diligence in filing an amendment application with inordinate delay has no application to the case as the suit is prior to the amendment of Order 6 Rule 17 of C.P.C., this Court finds, though the amended provision is not applicable to the case at hand for being instituted in the year 1998 prior to the amendment, yet for the availability of the challenge to the plaintiff’s right, title and interest over the disputed property having been brought by way of response in the written statement in the year 1999, this Court finds, the proposed amendment not only suffers on account of delay but also involves no bona fide action on the part of the plaintiff. On perusal of the discussions made in the impugned order, this Court finds, even though the trial court has taken into account the plea and objection of the respective parties but has failed to appreciate the delay in bringing the proposed amendment. 9. In spite of a clear pleading justifying right over property by the plaintiff and in spite of a clear denial of the plaintiff’s claim of right and title over disputed property by the defendant no.2 since 1999, it cannot be construed that plaintiff was unaware of challenge to his right and came to know this aspect only in 2014 when additional written statement was filed. Besides plaintiff-O.P.1 since has amended the plaint on different occasions, nothing prevented the plaintiff to bring such amendment earlier. Thus the present amendment is grossly barred by time and meant to frustrate the trial of the suit. This Court further observes that such amendment if allowed at this stage will not only change the nature and character of the suit but will put the defendants into prejudice. 10. Considering the submission of Dr. Thus the present amendment is grossly barred by time and meant to frustrate the trial of the suit. This Court further observes that such amendment if allowed at this stage will not only change the nature and character of the suit but will put the defendants into prejudice. 10. Considering the submission of Dr. Mohapatra that the relief brought by way of amendment is grossly hit by limitation, this Court relying on a decision of Hon’ble apex Court reported in (2016) 1 SCC 530 observes that there is no manner of doubt that the amendment of plaint to incorporate the declaration of title is necessarily to relate back to the date of filing of the suit. Considering that the suit was filed in 1998 and the claim of right, title and interest being brought by way of amendment in April, 2016, the relief brought by way of amendment is grossly barred by time. Even though the amended provision at Order 6 Rule 17 of C.P.C. has no application to the case at hand but there being no appearance of bona fide step in bringing the amendment at the instance of the plaintiff here, amendment of this nature after nearly two decades is not permissible in the eye of law. For the view of the Hon’ble apex Court in (2016) 1 SCC 530 being a later judgment view expressed in (2002) 7 SCC 559 has no prevailing value. This Court observes that the attempt of amendment after two decades of the cause of action cannot be taken as a mere delay and latches on the other hand looking to the counter statement in the written statement filed in 1999, it appears, there is clear indication challenging the right, title and interest of the plaintiff from the threshold and this is a case of serious lapse on the part of the plaintiff thus it is a case where plaintiff shall be debarred from bringing a suit for declaration of right, title and interest at this stage even. For the pleadings in the plaint and the counter statement in the written statement filed in 1998 and 1999 respectively bring the dispute on the claim for right, title and interest involving the suit property, this case cannot be a case of cause of action taking place on filing of additional written statement. 11. For the pleadings in the plaint and the counter statement in the written statement filed in 1998 and 1999 respectively bring the dispute on the claim for right, title and interest involving the suit property, this case cannot be a case of cause of action taking place on filing of additional written statement. 11. For the observations herein above and taking into consideration the decision of the Hon’ble apex Court, vide (2016) 15 SCC 530, this Court has no hesitation in interfering in the impugned order, vide Annexure-3 and thus the order, vide Annexure-3 is set aside. Amendment application stands rejected. So far the order, vide Annexure-4, for the observation herein above and since the proceeding involved therein was not maintainable, the order, vide Annexure-4 needs no interference. 12. Under the circumstance, the Civil Miscellaneous Petition stands allowed. No cost.