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2019 DIGILAW 446 (ORI)

Bhagabat Samal v. Rashmikanta Sahoo

2019-07-10

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 12.4.2018 passed by learned Civil Judge (Sr. Divn.), Jajpur in T.S. No.246/1993 (Final Decree), whereby and whereunder learned trial court has allowed the application filed by the plaintiff under Order 6 Rule 17 CPC for amendment of the plaint subject to payment of cost of Rs.300/-. 2. Brief facts of the case are that the plaintiff-opposite party instituted T.S. No.246 of 1993 in the court of learned Civil Judge (Sr. Divn.), Jajpur for partition against the defendant petitioner. The petitioner as plaintiff instituted T.S. No.154 of 1995 in the same court for declaration of title and permanent injunction. He had also filed T.S. No.155 of 1995 in the same court for permanent injunction. The three suits were heard analogously and disposed of by a common judgment. T.S. No.246 of 1993 was decreed preliminary. T.S. Nos.154 and 155 of 1995 had been decreed in part. Felt aggrieved, the petitioner filed R.F.A. Nos.34, 35 and 36 of 2006 before learned Additional District Judge, Jajpur. The appeals were dismissed. Thereafter, he filed R.S.A. Nos.474, 475 and 476 of 2009 before this Court. By judgment dated 04.12.2017, the appeals were dismissed. Thereafter, the opposite party initiated final decree proceeding. While the matter stood thus, he filed an application under Order 6 Rule 17 CPC to amend the plaint. In the proposed amendment, the plaintiff sought to incorporate the fact that lot no.1 and lot no.2 of the scheduled property corresponds to hal plot nos.180 and 181 respectively under hal khata no.248. Learned trial court has rejected the application on 13.5.2010 on the ground that it has no jurisdiction to entertain the application when second appeals are subjudice. The opposite party filed W.P.(C) No.14437 of 2010 before this Court. By order dated 17.11.2015, this Court held that the application for amendment shall be considered after disposal of second appeals. Thereafter, the plaintiff filed an application under Order 6 Rule 17 CPC seeking the same reliefs. The defendant filed objection. Learned trial court has allowed the said application. 3. Heard Mr. Bibekananda Bhuyan along with Mrs. Sujata Sahoo, learned Advocates for the petitioner and Mr. Aditya Kumar Mohapatra along with Mr. Manoranjan Muduli, learned Advocates for the opposite party. 4. Mr. The defendant filed objection. Learned trial court has allowed the said application. 3. Heard Mr. Bibekananda Bhuyan along with Mrs. Sujata Sahoo, learned Advocates for the petitioner and Mr. Aditya Kumar Mohapatra along with Mr. Manoranjan Muduli, learned Advocates for the opposite party. 4. Mr. Bhuyan, learned Advocate for the petitioner, submitted that once preliminary decree is confirmed in the second appeal, learned trial court has no jurisdiction to amend the decree. The decree has merged. Earlier application for amendment was rejected. Subsequent application for amendment will not lie. To buttress the submission, he placed reliance on the decisions of this Court in the case of Baman Chandra Acharya and others vs. Balaram Acharya and others, (1966) AIR Orissa 160, Sajani Bewa and another vs. Kartik Sahu and others, (1981) AIR Orissa 157 and Jayanta Kumar Rath vs. Pravas Kumar Rath, 2016 AIR(CC) 784 (Ori.). 5. Per contra, Mr. Mohapatra, learned Advocate for the opposite party, submitted that the application for amendment is clarificatory in nature. The plaintiff wanted to bring on record the particulars of the suit land. The facts which are sought to be inserted by way of amendment are well within the knowledge of the defendant. The defendant in his deposition at paragraph-4 has clearly stated the same. The application for amendment can be allowed at any stage of the suit. The instant suit has been filed much prior to the amendment of CPC of the year 2002. This Court while disposing of W.P.(C) No.14437 of 2010 opined that the application for amendment shall be kept pending till disposal of the second appeals. The amendment should be allowed to avoid the multiplicity of the suits. The amendments are relevant for adjudication of the proceeding. He placed reliance on the decisions of the apex Court in the case of Revajeetu Builders and Developers vs. Narayanaswamy and Sons and others, (2009) 10 SCC 84 and Peethani Suryanarayana and another vs. Repaka Venkata Ramana Kishore and others, (2009) 11 SCC 308 . 6. In Revajeetu Builders and Developers on a survey of earlier decisions, the apex Court held: "Whether amendment is necessary to decide real controversy 58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment. No prejudice or injustice to other party 59. The other important condition which should govern the discretion of the court is the potentiality of prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side. The courts have very wide discretion in the matter of amendment of pleadings but court's powers must be exercised judiciously and with great care. XXX XXX XXX Factors to be taken into consideration while dealing with applications for amendments 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." 7. In Peethani Suryanarayana and another, the apex Court held: "10. The power of the court to allow such an application for amendment of the plaint is neither in doubt nor in dispute. Such a wide power on the part of the court is circumscribed by two factors viz. These are only illustrative and not exhaustive." 7. In Peethani Suryanarayana and another, the apex Court held: "10. The power of the court to allow such an application for amendment of the plaint is neither in doubt nor in dispute. Such a wide power on the part of the court is circumscribed by two factors viz. (i) the application must be bona fide; (ii) the same should not cause injustice to the other side; and (iii) it should not affect the right already accrued to the defendants." 8. Reverting to the facts of the case and keeping in view the decisions cited supra, this Court finds that the plaintiff filed an application for amendment to incorporate the fact that lot no.1 and lot no.2 of the scheduled property corresponds to hal plot nos.180 and 181 respectively under hal khata no.248. In the plaint, the plot numbers and khata numbers have been stated. The proposed amendment is clarificatory in nature. It will not change the nature and character of the suit. Earlier an application for amendment was not rejected. The same was pending. In fact, learned trial court could have decided the said application. But the plaintiff filed a fresh application. 9. The decisions cited by Mr. Bhuyan, learned Advocate for the petitioner are distinguishable. 10. In Baman Chandra Acharya and others, the suit for partition was filed. The suit was decreed preliminary. Thereafter an application for amendment was filed to implead the co-sharer as a party. This Court held that addition of parties cannot be allowed as it would affect determination in preliminary decree, which has become final. But the same is not a case here. 11. In Sajani Bewa and another, the plaintiffs had instituted the suit for partition and obtained a preliminary decree declaring their 1/8th share in the property. In course of the final proceedings, after the Commissioner was appointed to work out the preliminary decree, an application under Order 6 Rule 17 CPC was filed for insertion of a large extent of property. But the plaintiffs claimed their share to be different from 1/8th. Learned trial court rejected the application. This Court held that the plaintiffs sought for deletion of certain properties from the hotchpot and wanted new properties to be added. But the plaintiffs claimed their share to be different from 1/8th. Learned trial court rejected the application. This Court held that the plaintiffs sought for deletion of certain properties from the hotchpot and wanted new properties to be added. The preliminary decree in a suit for partition ordinarily settles the hotchpot, i.e., the properties to be partitioned and declares the shares of the parties. Actual allotment in terms of the preliminary decree is left to be done at the final decree stage. The amendment in the present case has been asked for twenty-four years after the institution of the suit and also eighteen years after the preliminary decree. In regard to the new property, plaintiffs have claimed a higher share. This would require almost a re-trial of the suit. Allowing the amendment at this stage would necessarily require rectification of the decree. The preliminary decree has become final eighteen years back. There can be no justification for reviewing the decree at this stage on the basis of the application of amendment under Order 6 Rule 17 CPC. It further held that an application under Order 6 Rule 17 CPC could not be maintained for the amendment of the decree. But in the instant case, neither any property has been added nor deleted. 12. In Jayanta Kumar Rath, the suit for partition was compromised. The plaintiffs filed an application under Sec.152 CPC for correction of the decree stating that a large number of properties was the subject-matter of the suit. While drafting the compromise petition, certain mistakes were crept in. The allotment of land at Puri town had been disputed on the ground that Khata No.298 had been inadvertently mentioned as 321. Though he got an area of Ac.0.073 dec. of land out of Plot No.68, Ac.0.185 dec. out of Plot No.69, but the same had been mentioned as Ac.0.195 dec. and Ac.0.168 dec. respectively. Similarly though he got Ac.0.87 dec. of land out of Plot No.70, the said plot had been totally omitted from schedule 'Ka' Lot-1. That apart, defendant no.2 has got only Ac.0.03 dec. of land out of Plot 70, but inadvertently the entire plot had been allotted in his favour. Further, though he got an area of Ac.0.182 dec. of land out of Plot No.68, the same has been mentioned as Ac.0.101 dec. That apart, defendant no.2 has got only Ac.0.03 dec. of land out of Plot 70, but inadvertently the entire plot had been allotted in his favour. Further, though he got an area of Ac.0.182 dec. of land out of Plot No.68, the same has been mentioned as Ac.0.101 dec. It is further stated that the respective allotments of the properties had been shown in sketch map marked in blue colour for the plaintiff and the red colour for defendant no.2, which was a part and parcel of the decree. The boundary mentioned in allotment sheet, its area and sketch map do not tally. The defendants filed objection. Learned trial court dismissed the same. This Court held that the court under Sec.152 CPC clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time can be corrected on its own motion or on the application of any of the parties. There is no quarrel over the proposition of law. 13. The impugned order cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the Constitution of India. Accordingly, the petition is dismissed. But then, the cost as awarded by learned trial court appears to be too low. The same is enhanced to Rs.5,000/-.