Subash Chandra Behera vs Ulla Samal And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Mr. Sarkar, learned counsel for the Opposite Parties submits that in the meantime, Ulla Samal-Opposite Party No.1 has died and she has not yet been substituted.

Mr. Lenka, learned counsel for the Petitioner by filing a memo submits that no substitution of Ulla Samal-Opposite Party No.1 is necessary as she is survived by her son, who is Opposite Party No.2 to the CMP. Hence, the name of Ulla Samal may be deleted.

In view of such submission, the name of Ulla Samal is deleted from the cause title.

Order dated 20th February, 2019 (Annexure-11) passed by learned 3rd Additional Civil Judge (Senior Division), Cuttack in C.S. No.666 of 2017 is under challenge in this CMP, whereby an application filed by the Petitioner under Order VI Rule 17 C.P.C., has been dismissed.

Mr. Lenka, learned counsel for the Petitioner submits that the suit has been filed for declaration of right, title and interest, recovery of possession by evicting the Defendants-Opposite Parties from the suit land as well as for permanent injunction. When the Plaintiff went through the averments of the plaint to get ready for trial of the suit, he came to learn that incorrect as well as unnecessary averments have been made in the plaint. Further, the flow of title of the Plaintiff over the suit land has not been correctly indicated in the plaint. Hence, he changed his counsel and filed an application for amendment of the plaint. Although it appears that the Plaintiff by virtue of amendment sought to introduce a new story, but it does not take away the admission made in the plaint. The Plaintiff only made an attempt to state the facts with regard to the flow of title over the suit land. Although the Plaintiff purchased the suit land from Saudagar Behera, but inadvertently it is stated in the plaint that he has purchased the property from Menaka Behera-Defendant No.3 through her Power of Attorney Holder, namely, Ajaya Kumar Sahoo-Defendant No.4. He, therefore, prays for deletion of the name of Defendant No.4 and to implead Saudagar Behere in his place. Since no relief is claimed against the State Officials, the Plaintiff sought to delete Defendant Nos.5 and 6, namely, the Collector, Sadar, Cuttack and the Tahasildar, Barang from the cause title.

Learned trial Court holding that by virtue of amendment, the Petitioner sought to take away the admission made in the plaint, rejected the petition. It was further erroneously held that the proposed amendment will change the nature and character of the suit and will substitute one cause of action with another. It is his submission that although it appears to be taking away certain averments made in the plaint, but for the interest of justice, the Plaintiff should not be prevented from stating the facts for just adjudication of the suit. It is his submission that the Plaintiff had also filed an application for withdrawal of the suit to file a fresh one with better particulars, which was rejected and the said order is under challenge in CMP No.1134 of 2022, which is in today’s cause list for adjudication.

Since the amendment sought for is necessary for just adjudication of the case and trial of the suit has not yet commenced, there is no legal impediment for allowing such amendment. Accordingly, he prays for setting aside the impugned order under Annexure-11 and to permit the Petitioner to amend the plaint as proposed in the petition for amendment under Annexure-9.

Mr. Sarkar, learned counsel for the Opposite Party Nos.1 and 2 (contesting Opposite Parties) submits that the amendment sought for is hopelessly barred by limitation, as it was filed at a belated stage. By virtue of amendment, the admission made by the Plaintiff sought to be taken away by introducing a completely new cause of action. Thus, learned trial Court has committed no error in dismissing the petition under Order VI Rule 17 C.P.C..

He further submits that the Defendants-Opposite Party Nos.1 and 2 have already filed written statement denying the pleading made in the plaint. Even after receipt of the written statement, the Plaintiff did not seek to amend the plaint immediately. Thus, the amendment sought for is also not bona fide. He, therefore, prays for dismissal of the CMP.

In order to appreciate the submissions made by learned counsel for the parties, this Court perused the plaint (Annexure-7), written statement (Annexure-8), petition for amendment (Annexure-9) as well as objection to the petition for amendment (Annexure-10) and the impugned order (Annexure-11). It appears that originally, the Plaintiff had pleaded that he had purchased the property from Ajaya Kumar Sahoo-Defendant No.4, the Power of Attorney Holder of Defendant No.3, Menaka Behera. In fact, the land was recorded in the name of Menaka Behera. Said Menaka Behera through her Power of Attorney Holder, namely, Ajaya Kumar Sahoo alienated the property in favour of Saudagar Behera, who is the vendor of the Petitioner. This fact was omitted to be pleaded in the plaint. On the other hand, it was erroneously stated in the plaint that the Petitioner has purchased the property from Menaka Behera through her Power of Attorney Holder. The Registered Sale deed relied upon by the Plaintiff-Petitioner clearly discloses that he had purchased the property from one, Saudagar Behera to whom the Plaintiff wants to implead as Defendant No.4 in place of Ajaya Kumar Sahoo.

Adjudicating a suit on incorrect fact which is not inconsonance with the record available, would be of no use and will benefit none. A party should not be penalized by refusing amendment to state the facts which is based on record. The same will ultimately assist the Court for proper adjudication of the suit.

In the instant case, admittedly the Petitioner by virtue of amendment sought to amend certain pleading with regard to his flow of title. Thus, he should have been allowed to take such a pleading which would assist the Court for adjudication of the suit. Further the Defendants are no way prejudiced by such amendment as on perusal of the copy of the written statement at Annexure-8, it reveals that the Defendant Nos.1 and 2 have only denied the averments made in the plaint. No new fact with regard to their acquiring of title over the suit land has been pleaded. On perusal of the plaint, it appears that the Plaintiff does not claim any relief against Defendant Nos.5 and 6, who are the Government Officials. Thus, they are unnecessary parties to the suit. Since the Petitioner has purchased the property from Saudagarh Behera, he is a necessary party to the suit. Thus, learned trial Court should have allowed the application for amendment for just adjudication of the suit.

In view of the discussions made above, this Court feels that the amendment petition should be allowed. Since the amendment application was filed before commencement of trial, there is no legal impediment to entertain such application.

Accordingly, the impugned order under Annexure-11 is set aside and the petition for amendment at Annexure-9 is allowed. Plaintiff is directed to file consolidated copy of the plaint within a period of fifteen days hence serving copy thereof on learned counsel for the Defendants.

The CMP is allowed to the aforesaid extent.

Urgent certified copy of this order be granted on proper application.

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