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2019 DIGILAW 229 (ORI)

Maheswar Das v. Sridhara Rout

2019-03-20

A.K.RATH

body2019
JUDGMENT : A.K.RATH, J. 1. By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 3.8.2018 passed by the learned Civil Judge (Jr.Division), Balasore in Civil Suit No.527 of 1995, whereby and whereunder, learned trial court has partly allowed the application for amendment of the plaint. 2. The plaintiff-petitioner instituted the suit for declaration of title and permanent injunction. The defendants entered contest and filed written statement denying the assertions made in the plaint. The suit was decreed. Felt aggrieved, the defendants filed R.F.A.No.77 of 2012 before the learned District Judge, Balasore. By judgment dated 18.12.2015, learned appellate court set aside the judgment and decree, allowed the appeal and remanded the matter back to the trial court for de novo hearing. Liberty was granted to the parties to file further pleadings and adduce evidence. After remand, the plaintiff filed an application under Order 6 Rule 17 CPC for amendment of the plaint. In the proposed amendment, the plaintiff sought to incorporate the fact that schedule "Kha" property originally belonged to Bhagaban Chandra Das, Zamindar. The sabik settlement R.O.R. was published in his name. On 22.3.1945, Bhagaban Chandra Das executed an amalnama in favour of his father Duma Das. His father was in cultivating possession of the same. Thereafter the plaintiff is in possession of the same. The defendants filed objection to the same. Learned trial court allowed the application partly and the rejected the rest part of the proposed amendment relating to addition of new plot and the facts relating to amalnama patta. 3. Heard Mr.Amit Bose, learned counsel for the petitioner and Mr.Dinesh Kumar Mohanty, learned counsel for the opposite parties. 4. Mr.Bose, learned counsel for the petitioner submitted that learned appellate court set aside the judgment and decree of the learned trial court and remitted the matter back for de novo hearing. Thereafter the plaintiff has filed an application for amendment. The proposed amendment is formal in nature. The same will not change the nature and character of the suit. 5. Per contra, Mr.Mohanty, learned counsel for the opposite parties submitted that the plaintiff has not sought leave of the appellate court to amend the plaint. The suit is of the year 1995. Application for amendment was filed after twenty three years. No foundational fact exists. The application for amendment has been filed to protract the litigation. 5. Per contra, Mr.Mohanty, learned counsel for the opposite parties submitted that the plaintiff has not sought leave of the appellate court to amend the plaint. The suit is of the year 1995. Application for amendment was filed after twenty three years. No foundational fact exists. The application for amendment has been filed to protract the litigation. It is mala fide. 6. In Varun Pahwa v. Mrs.Renu Chaudhary (Civil Appeal No.2431 of 2019 disposed of on 1.3.2019), the apex Court held : "9... ... ....The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. In State of Maharashtra vs. Hindustan Construction Company Limited, this Court held as under:- "17. Insofar as the Code of Civil Procedure, 1908 (for short "CPC") is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that 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. 18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn. 2 - an appeal that came up before the Court of Appeal, Brett M.R. stated: "... The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made...." 19. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made...." 19. In Charan Das v. Amir Khan 3 the Privy Council exposited the legal position that although power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time, yet there are cases in which that consideration is outweighed by the special circumstances of the case. *** *** *** 22. In Jai Jai Ram Manohar Lal 4 this Court was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held: (SCC p.871, para 5) "5. .... Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side." This Court further stated (Jai Jai Ram Manohar Lal case, SCC p.873, para 7): "7. ...The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations." 7. On the anvil of the decisions cited supra, the instant case may be examined. The suit was decreed. Assailing the same, the defendants filed R.F.A.No.77 of 2012 before the learned District Judge, Balasore. The appeal was allowed. The matter was remitted back to the learned trial court for de novo hearing. In the proposed amendment, the plaintiff sought to incorporate khata number, plot number and the facts as stated above. The suit was decreed. Assailing the same, the defendants filed R.F.A.No.77 of 2012 before the learned District Judge, Balasore. The appeal was allowed. The matter was remitted back to the learned trial court for de novo hearing. In the proposed amendment, the plaintiff sought to incorporate khata number, plot number and the facts as stated above. The proposed amendment will not change the nature and character of the suit. In view of the same, the application for amendment is allowed subject to payment of costs of Rs.5,000/- (five thousand) to the learned counsel for the defendants within a period of four weeks. Learned trial court shall conclude the hearing of the suit by end of July, 2019. The petition is allowed.