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2019 DIGILAW 180 (ORI)

Radha Behera v. Jamula Venkata Rammana

2019-03-06

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 20.04.2018 passed by the Civil Judge (Jr. Divn.), Berhampur in C.S. No.224 of 2012, whereby and whereunder the trial court rejected the application of the defendant nos.5 and 6, petitioners herein, under Order 6 Rule 17 C.P.C. for amendment of written statement. 2. Plaintiff-Opposite party no.1 instituted the suit for declaration of title and permanent injunction impleading opposite party nos.2 to 7 and petitioners as defendants. The case of the plaintiff was that the suit property originally belonged to one C. Annapoornamma. She sold the land to Pakala Gopal Rao by means of a registered sale deed no.1396/1913. Thereafter, Pakala Gopal Rao sold the land to Nyapati Venkata Subhadramma on 16.09.1917. Nyapati Venkata Subhadramma sold Ac.1.25 dec. of land to the trustee of Sri Venkateswara Mahaprabhu by means of a registered sale deed dated 03.02.1922. Nyapati Venkata Subhadramma died on 15.05.1947. After her death, the deity is in possession of the land. On 27.09.1947, the Commissioner of Endowments accorded permission to the trustees of the deity to lease out the land. The trustees of the deity had leased out the land to the defendant no.8, Association, on 3.10.1962. While the matter stood thus, the Tahasildar initiated suo motu O.E.A. Case No.83/2001 in respect of the land in question pursuant to the notification no.57677/R, dated 06.12.2000. The O.E.A. Collector settled the land in favour of defendant no.8 on 31.08.2001 after observing all formalities. In the year 1988, Dandapani Nayak, husband of defendant no.1 and father of defendant nos.2 to 4, claimed that he acquired title over the suit land by way of adverse possession. Defendant no.8 instituted T.S. No.109/88 in the court of the Munsif, Berhampur. The suit was dismissed. It was held that Dandapani Nayak had not perfected title by way of adverse possession. No appeal was filed. Dandapani Nayak died in the year 2005. Defendant no.8 sold the land to the plaintiff for a consideration of Rs.10,00,000/- for welfare of the Association. Possession of the land was duly delivered to him. Defendant nos.1 to 7 attempted to trespass over the land, for which a proceeding under Sec.144 Cr.P.C. has been initiated. With this factual scenario, he instituted the suit seeking the releifs mentioned supra. 3. The defendant nos.1 and 2 filed written statement denying the assertions made in the plaint. Possession of the land was duly delivered to him. Defendant nos.1 to 7 attempted to trespass over the land, for which a proceeding under Sec.144 Cr.P.C. has been initiated. With this factual scenario, he instituted the suit seeking the releifs mentioned supra. 3. The defendant nos.1 and 2 filed written statement denying the assertions made in the plaint. The defendant nos.5 and 6, petitioners, filed written statement pleading inter alia that their vendors are successors of Dandapani Nayak. After death of Dandapani Nayak, the vendors have succeeded to the property. Dandapani Nayak has forcibly occupied the suit site. Defendant no.8 filed C.S. No.109/88 for declaration of title and injunction. The suit was dismissed holding that Dandapani Nayak was in possession and enjoyment of the house site from the year 1978. The Association is not in possession of the land. Thereafter the Association has filed T.A. No.51/91 before the District Judge, Ganjam at Berhampur, which was transferred to the court of the 1st Additional District Judge, Berhampur and renumbered as T.A. No.18/93. The said appeal having been dismissed, the Association filed S.A. No.213/1996 before this Court. The appellant withdrew the second appeal on 19.12.2009. Thus possessory title of Dandapani Nayak was confirmed. Dandapani Nayak was in possession of the suit property and after him the successors were in continuous possession and enjoyment of the suit property and as such they have perfected title by way of adverse possession. The settlement of land was not with the knowledge of the vendors of the defendants, nor the defendant nos.5 and 6. The defendant no.8 in connivance with the plaintiff has influenced the Revenue Inspector, Bhapur, whereafter suo motu O.E.A Case No.83/2001 was initiated by the Tahasildar. The Tahasildar illegally settled the land without following the due procedure. 4. The trial court framed issues. The evidence on both the sides was closed. After closure of evidence, the petitioners filed an application under Order 26 Rule 9 C.P.C. for appointment of a survey knowing commissioner. The same having been rejected, they filed W.P.(C) No.295 of 2014 before this Court. The petition was dismissed on 17.1.2018. A direction was issued to the trial court to conclude the suit within three months. While the matter stood thus, the petitioners filed an application under Order 6 Rule 17 for amendment of written statement. The same having been rejected, they filed W.P.(C) No.295 of 2014 before this Court. The petition was dismissed on 17.1.2018. A direction was issued to the trial court to conclude the suit within three months. While the matter stood thus, the petitioners filed an application under Order 6 Rule 17 for amendment of written statement. In the proposed amendment, they sought to incorporate the plea that the defendant no.8 was hand in glove with the O.E.A. authorities, initiated O.E.A. Case Nos.83 and 92 of 2001 and managed to obtain the order. No notice was issued to the public. No enquiry was conducted. They have taken the plea that the O.E.A. proceeding is the outcome of collusiveness between the plaintiff and the concerned authorities. The proposed amendment is designed to introduce the facts, for more clarity of the matter in issue. 5. The plaintiff filed objection to the same. The trial court came to hold that the evidence from both the sides is closed. The suit was posted for argument. A direction was issued for expeditious trial of the suit and to conclude the same within a period of three months. The petitioners have not stated what prevented them from filing the amendment petition prior to the commencement of trial. They have failed to establish that in spite of due diligence, they could not have filed the petition for amendment of the written statement. Held so, it rejected the petition. 6. Heard Miss Deepali Mohapatra, learned Advocate for the petitioners, Mr. S.S. Rao, learned Advocate for the opposite party no.1 and Mr. P.V. Balakrishna, learned Advocate for the opposite party no.7. None appeared on behalf of opposite party nos.2 to 6 after valid service of notice. 7. Miss Mohapatra, learned Advocate for the petitioners, submitted that in the written statement, the defendant nos.5 and 6 stated that defendant no.1 colluded with O.E.A. authorities, whereafter O.E.A. Case Nos.83 and 92 of 2001 were initiated. No notice was issued. Without following the due procedure, the O.E.A. Collector illegally settled the land. The foundational fact already exists. The proposed amendment is clarificatory in nature. By way of amendment, the facts have been precisely stated. The expression due diligence is applicable to the plaint, not the written statement. The amendment of written statement should be construed liberally. No notice was issued. Without following the due procedure, the O.E.A. Collector illegally settled the land. The foundational fact already exists. The proposed amendment is clarificatory in nature. By way of amendment, the facts have been precisely stated. The expression due diligence is applicable to the plaint, not the written statement. The amendment of written statement should be construed liberally. To buttress the submission, she placed reliance on the decisions of the Apex Court in the case of Baldev Singh and others vs. Manohar Singh and another, (2006) 6 SCC 498 and Raj Kumar Bhatia vs. Subhash Chander Bhatia, (2018) 2 SCC 87 . 8. Per contra, Mr. Rao, learned Advocate for the opposite party no.1, submitted that the amendment is not necessary for decision of the case. Due diligence applies to the pleadings. Evidence was closed. Thereafter, the defendants filed an application under Order 26 Rule 9 C.P.C. for appointment of a survey knowing commissioner. The same having been rejected, they filed W.P.(C) No.295/2014 before this Court, which met the same fate. The plaintiff has taken the plea that the land has been settled in favour of his vendor in the O.E.A. proceeding. In paragraph 5 of the written statement, an elaborate reply denying the assertions made in the plaint was given. The amendment is not imperative. In the event the amendment is allowed, it will cause serious prejudice to the plaintiff. The petition has been filed to protract the litigation. He placed reliance on the decisions of the Apex Court in the case of State of A.P. and others vs. Pioneer Builders, A.P., (2007) 1 OrissaLR 360 (SC), Andhra Bank vs. ABN Amro Bank N.V. & others, (2007) AIR SC 2511, Revajeetu Builders and Developers vs. Narayanaswamy and sons and others, (2009) 10 SCC 84 and this Court in the case of Smt. Sabitri Debi vs. Ramachandra Mishra and others, (1985) AIR Orissa 245. 9. Before delving deep into the matter, it is apt to refer the decisions cited by the learned counsel for the parties. In Baldev Singh and others, the Apex Court held that inconsistent defences can be raised in the written statement although the same may not be permissible in the case of the plaint. 10. 9. Before delving deep into the matter, it is apt to refer the decisions cited by the learned counsel for the parties. In Baldev Singh and others, the Apex Court held that inconsistent defences can be raised in the written statement although the same may not be permissible in the case of the plaint. 10. In State of A.P. and others, the Apex Court quoted with the approval of the oft-quoted judgment of the Privy Council in the case of Ma Shwe Mya vs. Maung Mo Hnaung, (1922) AIR PC 249 wherein the Privy Council succinctly summarises the principles, which may be kept in mind while dealing with the prayer for amendment of the pleadings. The Privy Council held: "All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit." 11. In Andhra Bank, the Apex Court held that while allowing an application for amendment of the pleadings, the Court cannot go into the question of merit of such amendment. The only question at the time of considering the amendment of the pleadings would be whether such amendment would be necessary for decision of the real controversy between the parties in the suit. 12. In Smt. Sabitri Debi, this Court held that the fundamental requirement, which is to be satisfied in all cases of amendment of pleadings, that the proposed amendment is necessary for effective adjudication upon the dispute between the parties. 13. In Revajeetu Builders and Developers on a survey of earlier decisions, the Apex Court has succinctly stated that the factors to be taken into consideration while dealing with the applications for amendments. The Apex Court held: "63. 13. In Revajeetu Builders and Developers on a survey of earlier decisions, the Apex Court has succinctly stated that the factors to be taken into consideration while dealing with the applications for amendments. The Apex Court held: "63. On critically analysing 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." 14. In Raj Kumar Bhatia, the trial court has allowed the application for amendment of the written statement. The High Court set aside the order of the trial court. The matter went to the Apex Court. Taking a cue from Sadhana Lodh vs. National Insurance Co. Ltd., (2003) 3 SCC 524 , the Apex Court held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Apex Court held that there was no reason for the High Court to interfere under Article 227 of the Constitution. 15. The submission of Miss Mohapatra, learned Advocate for the petitioners, that the expression "due diligence" shall apply to plaint only is difficult to fathom. 16. Order 6 Rule 17 C.P.C., which is the hub of the issue, is quoted hereunder. "17. 15. The submission of Miss Mohapatra, learned Advocate for the petitioners, that the expression "due diligence" shall apply to plaint only is difficult to fathom. 16. Order 6 Rule 17 C.P.C., which is the hub of the issue, is quoted hereunder. "17. Amendment of pleadings-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties; Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 17. "Pleading" shall mean plaint or written statement as defined in Order 6 Rule 1 C.P.C. 18. Reverting to the facts of the case and keeping in view the law laid down in the decisions cited supra, this Court finds that the plaintiff asserts that the land was settled in favour of his vendor in a proceeding under the Orissa Estate Abolition Act. A detailed written statement has been filed controverting the allegation made in the plaint. In paragraph 5 of the written statement, it is pleaded that the defendant no.8 in connivance with the O.E.A. authority initiated suo motu O.E.A. Case Nos.83 and 92 of 2001. No notice was issued. No procedure was followed. In the proposed amendment, the said facts are again sought to be incorporated. By no stretch of imagination, it can be said that the proposed amendment is clarificatory in nature. Rather the proposed amendment is repetition of facts stated in the written statement. The same is not imperative for proper and effective adjudication of the lis. Evidence was closed in the year 2014. The petitioners filed an application under Order 26 Rule 9 C.P.C. for appointment of a survey knowing commissioner. The same having been rejected, they filed W.P.(C) No.295/2014 before this Court, which was eventually dismissed. This Court directed the trial court to conclude the hearing of the suit within a period of three months. Thereafter an application for amendment is filed. The application for amendment is a ruse. The petition has been filed to protract the litigation. 19. The same having been rejected, they filed W.P.(C) No.295/2014 before this Court, which was eventually dismissed. This Court directed the trial court to conclude the hearing of the suit within a period of three months. Thereafter an application for amendment is filed. The application for amendment is a ruse. The petition has been filed to protract the litigation. 19. The impugned order does not suffer from any illegality or infirmity warranting interference of this Court under Article 227 of the Constitution of India. Accordingly, the petition is dismissed. There shall be no order as to costs.