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Rameshlal Santuka Vs. Sureshlal Santuka - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. Nos. 486 and 487 of 1983
Judge
Reported inAIR1984Ori64
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantRameshlal Santuka
RespondentSureshlal Santuka
Appellant AdvocateB.M. Patnaik, ;K.N. Jena and ;S.C. Lal, Advs.
Respondent AdvocateB.K. Mohanti, ;B. Misra, ;B.P. Das and ;J.P. Patnaik, Advs.
DispositionRevision allowed
Cases ReferredIn Ganesh Trading Co. v. Moji Ram
Excerpt:
.....the plaintiff's plea of oral partition on 30-10-1978 and he has further alleged that the deed of family settlement dated 27-2-1979 was void, unenforceable, inoperative and inadmissible. the court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs......the petitioner's application under order. 6, rule 17 of the civil p. c. for amendment of the written statement. civil revision no. 486 of 1983 is directed against the order dated 16-7-1983 passed by the learned additional subordinate judge rejecting the petitioner's application under section 151 of the civil p. c. praying for review of the aforesaid order dated 15-7-1983. these two revisions have been heard analogously. 2. defendant-petitioner rameshlal, maheshlal, dinesh lal and the plaintiff-opposite party sureshlal are the four sons of the late kedarnath santuka. the plaintiff's suit is for partition of the suit lands together with buildings, structures and the fittings described in the schedule appended to the plaint. according to the plaintiff, the suit properties were.....
Judgment:
ORDER

B.N. Misra, J.

1. These two revisions arise oat of Title Suit No. 383 of 1982 pending on the file of the learned Additional Subordinate Judge, Cuttack. The petitioner and the opposite party are the defendant and plaintiff respectively in the said suit. Civil Revision No. 487 of 1983 is directed against the order dated 15-7-1983 passed by the learned Additional Subordinate Judge rejecting the petitioner's application under Order. 6, Rule 17 of the Civil P. C. for amendment of the written statement. Civil Revision No. 486 of 1983 is directed against the order dated 16-7-1983 passed by the learned Additional Subordinate Judge rejecting the petitioner's application under Section 151 of the Civil P. C. praying for review of the aforesaid order dated 15-7-1983. These two revisions have been heard analogously.

2. Defendant-petitioner Rameshlal, Maheshlal, Dinesh Lal and the Plaintiff-opposite party Sureshlal are the four sons of the late Kedarnath Santuka. The plaintiff's suit is for partition of the suit lands together with buildings, structures and the fittings described in the schedule appended to the plaint. According to the plaintiff, the suit properties were acquired in 1966 out of joint family funds. On 30-10-1978 there was ar oral partition amongst the co-sharers in which the suit properties were allotted jointly to the plaintiff and the defendant in equal shares on 27-7-1979 a memorandum of family settlement was drawn up on the basis of the oral partition which had taken place on 30-10-78. The plaintiff and the defendant were in joint possession of the suit properties and they decided to construct two similar quarters on the suit lands. After the commencement of the construction work of one quarters, the plaintiff and defendant entered into a written agreement on 27-8-1980, the terms of which have been indicated in para 3 of the plaint. The plaintiff and the defendant have each contributed about Rs. 2,80,000/- for the construction work so, far. The construction of the first quarters was completed and thereafter construction work of the second quarters was started. The plaintiff and defendant had so long remained in the ancestral house and the plaintiff is still staying in that house, but the defendant shifted to the newly built house on the suit lands. About a month prior to the filing of the suit, differences arose between the brothers and the defendant alone by himself is proceeding with the construction work of the second quarters by using inferior type of materials with the idea that while the defendant would stay in the first quarters, the plaintiff would be obliged to occupy the second quarters. In these circumstances, the plaintiff was obliged, to file the suit for partition against the defendant.

3. In his written statement the defendant has denied that there was any oral partition or oral family settlement between the co-sharers on 30-10-1978. It is also denied that the plaintiff has half share in the suit properties. According to the defendant, the suit properties were acquired from the funds of the partnership firm of 'Jayanarayan Kedarnath' which was subsequently renamed as 'Jay Kay' and therefore the suit properties belonged to the partnership firm and not to the Hindu undivided family. The defendant has further stated that no doubt a family settlement deed between the father, mother and four sons had come into existence on 27-2-1979, but the said deed was void, unenforceable, inoperative and inadmissible. According to the defendant, the plaintiff is not entitled to any share in the srat properties.

4. In course of trial of the suit, on 12-5-1983 the defendant filed a petition under Order 6, Rule 17, Civil P. C. for amendment of the written statement by substitution of the figure '1980' for the figure '1978' occurring in the second sentence of the sub-para of para 27 of the written statement. The defendant has seated in his amendment petition that the figure '1978' was a typographical error and that the correct figure is '1980'. The plaintiff filed an objection to the prayer for amendment on the grounds that the amendment if allowed would change the nature and character of the suit and would also take away an important admission of the defendant made in paragraph 28 (c) of the written statement that they; continued joint till 1978 which by necessary implication means that there was separation in 1978 and further that the plaintiff would be greatly prejudiced if the prayer for amendment was allowed. The learned Additional Subordinate Judge rejected the prayer for amendment on the ground that the statement of the defendant in para-25 (c) of the written statement was an, admission of the plaintiff's case from which the defendant could, not be allowed to resile and that the proposed amendment would change the nature and character of the suit and prejudice the plaintiff. The learned Additional Subordinate Judge has further observed that though the defendant prays the amendment on the ground of correction of a typographical mistake, he has not established that the mistake was due to inadvertence or otherwise.

5. At the outset it would be useful to refer to the following extract from paragraph 28(c) of the written statement:-

'The family settlement was not voluntary and was induced lay undue influence of the father, Kedarnath Santuka. Though the business had been partitioned in 1962 the point family continued till the end of 1978 and all the members were residing together in their ancestral house in Town Hall Road, Cuttack, with their father and the mother till October, 1980 when the defendant shifted to the house on the suit land with his family... .......'

As already noted, in his petition for amendment the defendant has pointed out that the figure '1978' is a typegraphical error and that the correct figure is '1980'. Mr. R.M. Patnaik, learned counsel appearing for the defendant, has urged that the expression--'the joint family continued till the end of 1978' is not an admission by the defendant as the plaintiff's definite case before the Court is that the oral partition between the co-sharers had taken place on 30-10-1978 and not at the end of 1978. It is also submitted that--30-10-1978, and 'end of 1978' denote two different dates and that the latter statement of fact cannot be said to be an admission of the former. Mr. B.K. Mohanti and Mr. B. Misra, learned counsel appearing on behalf of the plaintiff, have urged that the aforesaid averment in the written statement is an implied admission of separation prior to 27-2-1979 and in support of this submission counsel have referred, to the averments contained in paragraphs 3, 27 and 28 of the written statement. As already noted, the defendant in his written statement has clearly denied the plaintiff's plea of oral partition on 30-10-1978 and he has further alleged that the deed of family settlement dated 27-2-1979 was void, unenforceable, inoperative and inadmissible. In these circumstances, it cannot be said that the averment in the written statement that the joint family continued till the end of 1978 is an implied admission of the plaintiff's case. Even if the aforesaid averment in the written statement is to be considered m an admission by the defendant, as pointed out in Panchdeo Narain Srivastava v. Km Jyoti Sahay, AIR 1983 SC 452) an admission made by a party might be withdrawn of MIGHT be explained away and therefore it could not be said that by amendment an admission of fact could not be withdrawn. Tiros there is no ban in law to allow an amendment withdrawing an admission of fact. The matter would always depend on the facts and circumstances of each ease.

6. In this case the important point to note is that the defendant came up with a prayer for amendment on the definite ground that the figure '1973' was a typographical error for '1980' which is the correct figure. This assertion of fact has neither been denied nor challenged by the plaintiff m his objection. In these circumstances, there can be no reason far the Court not to accept the plea of the defendant that the figure '1978' was a typographical error. In Jai Jai Ram Manohar Lal v.

'The order passed by the High Court cannot be sustained. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side......'

In Ganesh Trading Co. v. Moji Ram, AIR 1979 SC 484 the Supreme Court held, (Para 4):

'It is clear from the foregoing summary of the main rules of pleadings that provisions for the amendment of pleadings, subject to such terms as to costs and giving of all parties concerned necessary opportunities to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them. Even if a party or its counsel is inefficient in setting out its case initially the shortcoming can certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience or expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued.'

In the present case, the defendant's assertion that the figure '1978' was a typographical error must be accepted as there is no challenge or denial by the plaintiff. The present suit is one for partition between the brother and the nature and character of the suit is certainly not going to change if the proposed amendment is allowed. On consideration, I hold that it would be just and proper to allow the error to be rectified as prayed for by the defendant for a proper and effective adjudication of the disputes between the parties.

7. For the reasons stated above, Civil Revision No. 487 of 1983 is allowed. The impugned order dated 15-7-1983 is set aside and the defendant is hereby permitted to amend the written statement by substituting the figure '1980' for '1975' in para-28 (c) of the written statement subject to the condition that the defendant shall pay to the plaintiff a sum of Rs. 350/- as costs within fifteen days from the date of this order, failing which this revision shall stand dismissed and the impugned order stall take effect. The plaintiff, if he so chooses, shall be permitted to recall the witnesses already examined by him for re-examination. There shall be no order as to costs. The lower court records be returned immediately.

8. In view of the order passed in Civil Revision No. 487 of 1983, no separate order need be passed in Civil Revision No. 486 of 1983 which is accordingly disposed of without costs.


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