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Nanda Moharana Vs. Lakshman Moharana and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 284 of 1971
Judge
Reported inAIR1973Ori42
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantNanda Moharana
RespondentLakshman Moharana and ors.
Appellant AdvocateR.C. Mohanty, Adv.
Respondent AdvocateM.M. Das, Adv.
DispositionRevision allowed
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........suit as it was, the main contest of the parties would be whether the plaintiff had title to the suit-house. before granting a decree for recovery of damages, the learned munsif was called upon to decide whether plaintiff had title to the disputed property and whether he had still a subsisting title so as to be entitled to recovery of possession and damages. by the amendment nothing more is asked than a prayer for declaration of title and recovery of possession which the plaintiff should have done from the beginning. in the peculiar facts of this case the nature of the suit is not changed. only there is a difference in the relief sought. on the identical material facts pleaded in the plaint, from the very start the plaintiff could have asked for the reliefs of declaration of title and.....
Judgment:
ORDER

G.K. Misra, C.J.

1. Plaintiff is the petitioner. The original suit was filed for recovery of rent and in the alternative for recovery of damages. The circumstances in which the relief was sought may be stated in brief. Plaintiff claims title to the disputed house and pleaded that defendants were tenants. He filed an application for eviction of the defendants before the House Rent Controller. That application was rejected on the finding that relationship of landlord and tenant was not established and that the House Rent Controller had no jurisdiction to entertain the application for eviction. Therefore, the plaintiff filed the present suit for recovery of rent, end as the relationship of landlord and tenant was not established in the alternative for recovery of damages on the footing that the defendants are in unauthorised occupation of the plaintiff's house. The defendants filed a written statement asserting that the plaintiff had no title to the disputed house and that the suit for recovery of damages was not maintainable without the plaintiff getting a declaration of his title. The plaintiff filed an amendment application with averments that paragraph 9 of the plaint be substituted by the following paragraph:--

'That the suit is valued upto Rupees 1,500/- for the purposes of court-fee and jurisdiction; Rs. 600/- being the present market value of the suit land and Rupees 900/- being the damages claimed from the defendants'.

He also wanted that prayers (c) and (d) should be added after prayer (b). The essence of prayers (c) and (d) is for declaration of title and recovery of possession. This amendment was rejected by the learned Munsif. First Court. Cuttack, on the ground that it changes the nature of the suit. The view of the learned Munsif is erroneous on the face of it.

2. Even in the suit as it was, the main contest of the parties would be whether the plaintiff had title to the suit-house. Before granting a decree for recovery of damages, the learned Munsif was called upon to decide whether plaintiff had title to the disputed property and whether he had still a subsisting title so as to be entitled to recovery of possession and damages. By the amendment nothing more is asked than a prayer for declaration of title and recovery of possession which the plaintiff should have done from the beginning. In the peculiar facts of this case the nature of the suit is not changed. Only there is a difference in the relief sought. On the identical material facts pleaded in the plaint, from the very start the plaintiff could have asked for the reliefs of declaration of title and recovery of possession besides the relief of recovery of damages. That being the position, allowing the amendment would not change the nature of the suit. The amendment must accordingly be allowed.

3. In the result, the order dated 3-8-1971, passed by the learned Munsif is set aside and the Civil Revision is allowed. In the circumstances, there will be no order as to costs,


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