Biswanath Panigrahi and Others vs Sri Sri Sri Jaganath Swami Mohaprabhu Bize

P.K. Tripathy, J.—Heard.

In this writ petition, petitioners challenge to the order passed by the Additional Civil Judge (Junior Division), R. Udayagiri, on 21.2.2002 in Title Suit No. 18 of 1998, by which learned Additional Civil Judge has rejected the prayer for amendment of the written statement.

As it appears, in the original written statement petitioners advanced the plea that they have title and possession over the disputed case land on the basis of a sale transaction made between them and one Bhikari Paik and that sale transaction took place in the year 1977. That written statement is a duly verified one. Defendants filed application for amendment to change the year of transaction to 1969 and the name of the vender to one Radha Mohan Subudhi. Plaintiff opposes to that prayer for amendment as an after thought of the defendants and also the trial Court finding substance in the objection raised by the plaintiff, rejected the prayer for amendment.

Learned counsel for the petitioner, Mr. I. C. Das states that in the application for amendment except stating that due to inadvertence the aforesaid wrong averment was made in the written statement, defendants have not explained what was that inadvertence and how did it occur. It appears that the suit was filed in the year 1998 and the plea of purchase in the year 1969 may be to advance a plea of title by adverse possession. Therefore, the plea of acquisition of title by a sale transaction by unregistered document" of the year 1969 from another person is perceivably intended to substitute the plea of title and possession on the basis of a sale transaction of the year 1977 from Bhikari Paik. Looking to that conduct of the defendants and the consequence thereof trial Court has rejected the application for amendment. This Court finds no illegality or jurisdictional error in the approach of the trial Court in that respect so as to interfere with the impugned order by invoking writ jurisdiction under Article 227 of the Constitution of India.

Learned counsel for the petitioners states that law permits for taking alternative plea in a written statement and therefore the trial Court failed to exercise the jurisdiction by not considering that aspect and rejecting the application for amendment. So far as the legal position is concerned, there is no dispute about the same. Keeping in view the facts noted above, it is found that petitioners do not intend to advance an alternative plea with respect to the claim of right, title, interest on the basis of a sale transaction. On the other hand, they wanted to take away the contention of right, title and interest over the case land by virtue of the sale transaction with Bhikari Paik in 1977 and to introduce a new case of right, title, interest and possession on the basis of unregistered deed of sale of the year 1969 with one Radha Mohan Subudhi. Therefore, it is not a case of an alternative plea but a substituted plea which may have the effect of withdrawing the admission about the predecessor in title. Under such circumstance, this Court does not find that the trial Court failed to properly exercise the jurisdiction vested in him.

A party should be careful in his contention while making averment in the pleading. A party should not utilise leniency or liberal approach of the Court as a mean to perpetuate evil designs or to carry out a wrong or mischievous action.

For the reasons indicated above, this Court dismissed the writ petition.