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Salicharan Bisi Vs. Sukanti Pujhari and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 372 of 1977
Judge
Reported inAIR1979Ori78; 47(1979)CLT177
ActsCode of Civil Procedure (CPC) , 1908 - Order 8, Rule 9
AppellantSalicharan Bisi
RespondentSukanti Pujhari and anr.
Appellant AdvocateS.C. Mohapatra and ;L.D. Rath, Advs.
Respondent AdvocateP.K. Misra, Adv.
DispositionPetition allowed
Cases ReferredLal v. National Building Material Supply
Excerpt:
.....devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 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......party and that at the time of his adoption, his natural father mrutunjaya had gifted away the suit lands to him and had got the same recorded in his name.4. the plaint was presented on the 12th march, 1974 and the written statement of the petitioner was filed on 18th august, 1975. on 14-4-1977 the opposite party amended the plaint by adding a relief for recovery of possession of the suit lands by evicting the defendants therefrom or in the alternative for partition, alleging that the defendants had forcibly occupied the suit lands and were in wrongful possession of the same. after amendment of the plaint the plaintiff opposite party was called upon to pay the deficit court-fee of rs. 351-75. but he filed an application under order 33,rule 1, code of civil procedure for leave to sue.....
Judgment:
ORDER

P.K. Mohanti, J.

1. This Civil revision is directed against an order refusing leave to amend the written statement.

2. Opposite party No. 1 filed Title Suit No. 7 of 1974 in the Court of Subordinate Judge, Sonepur for a declaration that the petitioner is not his adopted son and that the adoption, if any, is invalid. Although no relief for declaration of title or recovery of possession was sought for, a passing reference was made in the body of the plaint that the defendants had no right, title or possession over the lands described in the plaint schedule and that the petitioner fraudulently got his name recorded in the settlement record of rights as the adopted son of the opposite party No. 1.

3. Petitioner filed written statement asserting that he was the adopted son of the opposite party and that at the time of his adoption, his natural father Mrutunjaya had gifted away the suit lands to him and had got the same recorded in his name.

4. The plaint was presented on the 12th March, 1974 and the written statement of the petitioner was filed on 18th August, 1975. On 14-4-1977 the opposite party amended the plaint by adding a relief for recovery of possession of the suit lands by evicting the defendants therefrom or in the alternative for partition, alleging that the defendants had forcibly occupied the suit lands and were in wrongful possession of the same. After amendment of the plaint the plaintiff opposite party was called upon to pay the deficit court-fee of Rs. 351-75. But he filed an application under Order 33,Rule 1, Code of Civil Procedure for leave to sue in forma pauperis. The application was dismissed on 20-8-1977 and the deficit court-fee was paid on 2-9-1977. Then the suit was posted to 19-9-1977 for hearing. On that date, the petitioner applied for leave to amend his written statement by adding the following paragraph :--

'The suit Bhogra lands have been converted into rayati in the name of the defendant No. 1 by the order of the Collector, Bolangir and he has acquired fresh title to the same which cannot be challenged in this Court.'

5. The proposed amendment was opposed by the plaintiff. The learned Subordinate Judge refused to grant leave to amend the written statement on the ground that the proposed amendment was sought for at a late stage though the plea sought to be introduced by the proposed amendment was available to the petitioner at the time when he filed the original written statement.

6. It is urged in this civil revision that the learned Subordinate Judge illegally exercised his jurisdiction in refusing leave to amend the written statement.

7. Order 8, Rule 9, Code of Civil Procedure enables the Court to require written statement from any of the parties at any time. After the plaint was amended it was the duty of the Court to have given an opportunity to the defendant No. 1 to file additional written statement. (See AIR 1949 Orissa 77; Chandra Kishore Das v. Babulal Agarwala).

8. It would appear from the above narration of facts that in the original plaint the plaintiff only asked for the relief of declaration that defendant No. 1 was not his adopted son. Subsequently he amended the plaint by introducing the relief for recovery of possession or in the alternative for partition. No opportunity was given to the defendant No. 1 to file additional written statement. The plaintiff paid the deficit court-fee on the amended plaint on 2-9-1977 and on that very day the suit was posted to 19-9-1977 for hearing. On 19-9-1977 the petitioner applied for amendment of his written statement before commencement of the trial. It cannot, therefore, be said that there was any delay on the part of the petitioner in applying for amendment.

9. As mentioned earlier, the petitionerin his original written statement had claimed title to the suit lands on the basis of a gift by his natural father. But in his counter to the petition for temporary injunction he had specifically alleged that the suit lands were originally Bhogra lands and that the same had been settled in his favour in a Bhogra conversion proceeding. Thus it will be seen that long before the amendment of plaint the petitioner had taken the plea that the suit lands had been settled in his favour in a Bhogra conversion proceeding. It is only after this plea was taken by the petitioner that the opposite party came up with the prayer for amendment of plaint. It is, therefore, fu-tile to contend that the plaintiff-opposite party was taken by surprise by the proposed amendment.

9A. In the case of Jai Jai Ram Maho-har Lal v. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 the Court observed (at p. 1269) :--

''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 any injustice to the other side.'

10. The petitioner applied for amendment before commencement of the trial. As the parties had not entered the witness-box, it could not be said that if the amendment was allowed it would, in any way, cause prejudice to the plaintiff. This is not a case where it can be said that a vested right had accrued to the plaintiff-opposite party by lapse of time.

11. The object of the courts is to decide rights of the parties and not to punish them for the mistakes committed in the conduct of their cases. Any kind of error or mistake which if not fraudulent or intended to over-reach the court, ought to be corrected if it can be done without injustice to the Other party. The learned Subordinate Judge disallowed the amendment without keeping in view the established principles of law.

12. For the reasons stated above, I have no hesitation in holding that the learned Subordinate Judge acted illegally and with material irregularity in refusing to allow the application for amendment.

13. In the result, the revision petition is allowed. Leave to amend the written statement is granted. In the circumstances of the case, I make no order as to costs.


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