Fakir Majhi and Another vs Bhagirathi Majhi and Another

P.K. Mohanti, J.—This civil Revision is directed against an order allowing amendment of plaint.

Opposite party No. 1 brought Title Suit No. 27 of 1976 in the Court of the Subordinate Judge, Nayagarh for a declaration that the alienations made by Defendant No. 1 Fakir Majhi (Petitioner No. 1 here) in favour of Defendants 2 and 3 were void and for a permanent injunction restraining the said Defendant No. 1 from alienating the ''A'' schedule lands. The Plaintiff''s case as originally pleaded in the plaint was that Defendant No. 1 had been to Burma in the year 1942 where he acquired considerable wealth and with the help of that, he purchased 5. 49 acres of land in village Landabadu in the year 1948. The Plaintiff''s further case was that he had been adopted by Defendant No. 1 who married for the second time in the year 1975 and under the in fluence of the second wife alienated the ''B'' schedule and ''C'' schedule lands without any legal necessity. The contesting Defendants filed written statement refuting the plaint allegations.

Subsequently the Plaintiff sought for leave to amend paragraph 3 of the plaint by deleting the averment that "Fakir went to Burma in 1942 where he acquired considerable wealth and with this acquisition, he purchased A. 5.49 decimals of land in village Landabadu in 1948" and by substituting in its place the averment that "Fakir with the aid of his ancestral property had acquired some money. With the said money he along with Benu jointly purchased A. 5.49 decimals of land in village Landabadu."

The Defendants filed objection to the petition for amendment on the ground that the admission of the Plaintiff regarding the nature of the acquisition was sought to be got over by the proposed amendment which changed the entire basis of the Plaintiff''s case. The learned Subordinate Judge overruled the objections and allowed amendment of the plaint. Aggrieved by this order Defendants 1 and 2 have come up in revision.

On the pleadings as originally filed by the parties the main issue for consideration is whether the suit lands are the ancestral properties of the Defendant No. 1 or those are his self acquired properties. It would appear from the above narration of facts that 10 paragraph 3 of the plaint the Plaintiff had clearly admitted that the suit lands are the self acquired properties of Defendant No. 1. But by the proposed amendment he wanted to introduce a new case that the Defendant No. 1 had acquired the suit properties with the aid of joint family funds. It was not open to the Plaintiff to go back upon the admission contained in his original plaint and contend that Defendant No. .1 had acquired the suit lands out of the joint family funds. The proposed amendment is a direct negation of the admission made in the original plaint.

In the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., , the Defendants wanted to amend their original written statement by introducing an entirely different case. It was held that the Defendants could not be allowed to change completely the case made out in their original written statement and substitute an entirely different and new case. Their Lordships observed:

It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the Plaintiff completely from the admissions made by the Defendants in the written statement. If such amendments are allowed the Plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the Defendants.

In the case of Biva''s Private Ltd. Vs. West Bengal Khadi and Village Industries Board, , the Defendant admitted in the original written statement that he was appointed the sole selling agent of the products of the Plaintiff and that there was an agency agreement which was repudiated unilaterally by the Plaintiff. Subsequently, he wanted to amend the written statement by introducing a case that there was no agreement of agency. Thus the proposed amendment aimed at denying the relationship of Plaintiff and the Defendant as principal and agent which the Defendant had admitted in the original written statement. The application for amendment of written statement was rejected on the ground that the Defendant was attempting to negative the admission that he was the sale selling agent of the products of the Plaintiff.

In the instant case the Plaintiff had admitted in the original plaint that the suit lands are the self acquired properties of Defendant No. 1. The proposed amendment, if allowed will destroy the effect of the admission that has been made by the Plaintiff in the original plaint and will seriously prejudice the Defendants. In this view of the matter, the amendment sought for cannot be allowed.

The learned Subordinate Judge allowed the amendment relying on a decision of this Court reported in Parbati Dei v. Alupati Dukhishyama Patra and Ors. ILR 1965 Cutt. 431. That case arose out of a suit for recovery of arrears of rent and possession of the suit house from Defendant No. 1 on the allegation that the house had been leased out to him. The Defendant No. 1 denied the relationship of landlord and tenant. The Plaintiff''s title to the suit house was based on a registered sale-deed dated 10th of March, 1961 executed by Defendant No. 2 in his favour. Defendant No. 2 was the father of Defendant No. 4 who was the Petitioner in that case. The Petitioner had filed a joint written statement along with her mother, but she claimed no title in herself. Subsequently she asked for permission of the Court to file a separate written statement setting up her title to the suit house on the strength of a deed of gift executed by her father on 8-6-1955. Her contention is that subsequent to the filing of the joint written statement, she learnt from her neighbours that the suit house had been conveyed to her by her father. Then she made necessary enquiries and obtained a copy of the registered deed of gift dated 8-6-1955. On further search of her belongings, she also traced out the original gift deed. She filed a fresh written statement claiming title In herself. The learned Munsif rejected the written statement. This Court set aside the order of the learned Munsif and accepted the fresh written statement on the grounds that the story as to how the Petitioner could not advance the subsequent defence In the original written statement due to ignorance of the basis of her claim was believable and had not been discarded and that the subsequent claim was based on a registered deed of gift which could not be manufactured in between the filing of the two written statements. The Petitioner was a young lady of 20 years of age and knew nothing about the case. The joint written statement had been drafted under the instructions of her mother. These are the special circumstances which weighed with the Court in accepting the fresh written statement filed by the Petitioner. No such circumstance has been pleaded in the instant case. No reason has been assigned as to why the case sought to be introduced by the amendment was not pleaded in the original suit.

For the foregoing reasons, the Civil Revision is allowed and the order of the learned Subordinate Judge allowing amendment of plaint is set aside. Parties to bear their own costs.

Revision allowed.