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Bhaskar Chandra Behera and ors. Vs. Ranital Rice Mill Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 52 of 1980
Judge
Reported inAIR1983Ori77; 54(1982)CLT375
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantBhaskar Chandra Behera and ors.
RespondentRanital Rice Mill Co. and ors.
Appellant AdvocateS.C. Mohapatra and ;A.K. Sahoo, Advs.
Respondent AdvocateB.S. Das, Adv.
DispositionRevision dismissed
Cases ReferredIn Surji Dibya v. Achyutananda Biswal
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........the suit has been filed for the reliefs stated above.5. defendants 1 and 2 together have filed one written statement and defendant no. 3 another. their plea virtually is the same. according to them, there was a partition in the behera family and the 'b' schedule property fell to the share of kali and dinei, who belonged to the branch of bali. in the 'b' schedule, kali had half share and dinei the other half. in the remarks column of the 1928 settlement record-of-right the property was erroneously recorded in the names of nisakar, naran and jaladhar. they disputed that the 'b' schedule was exclusively allotted to the branch of narana, jaladhar and nisakar as alleged by the plaintiff. their plea is virtually that schedule 'b' was not exclusively allotted to the branch of nara, jaladhar and.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This revision is directed against an order of the Munsif, Bhadrak, rejecting an application for amendment of the written statements filed by defendants 1, 2 and 3.

2. The plaintiff instituted a suit for declaration of title, confirmation of possession; in the alternative for recovery of possession and injunction. The suit properties are comprised in two Schedules 'A' and 'B' which originally belonged to the Behera family. Long before 1928, the members had amicably divided the property by partition by metes and bounds setting apart a tank and the road for common use. In view of the partition, in the record-of-rights of 1928, the property stood separately recorded as per the allotment.

3. Schedule 'A' property passing through various hands in course of transactions ultimately reached the plaintiff who purchased the same by a registered sale deed dated 7-1-1963.

4. In regard to the 'B' schedule property, it is the plaint case that this property fell to the share of the branch consisting of Jaladhar, Naran and Nisakar. On the death of Naran and Nisakar, Jaladhar became the sole survivor and sole owner of the 'B' schedule property. On his, death, his mother Pata by registered sale deed dated 6-6-49 sold the same to Gangua, who in turn, by registered sale deed dated 26-5-1959 sold the property to Muralidhar (defendant No. 13). By registered sale deed dated 29-1-64, Muralidhar sold the 'B' schedule property to the plaintiff. The plaintiff has alleged that the defendant No. 3 claiming to have purchased the property from defendants 1 and 2 forcibly constructed a thatched structure over a part of 'B' schedule property and trespassed over another portion. On these allegations, the suit has been filed for the reliefs stated above.

5. Defendants 1 and 2 together have filed one written statement and defendant No. 3 another. Their plea virtually is the same. According to them, there was a partition in the Behera family and the 'B' schedule property fell to the share of Kali and Dinei, who belonged to the branch of Bali. In the 'B' schedule, Kali had half share and Dinei the other half. In the remarks column of the 1928 settlement record-of-right the property was erroneously recorded in the names of Nisakar, Naran and Jaladhar. They disputed that the 'B' schedule was exclusively allotted to the branch of Narana, Jaladhar and Nisakar as alleged by the plaintiff. Their plea is virtually that Schedule 'B' was not exclusively allotted to the branch of Nara, Jaladhar and Nisakar; but was allotted to Dinei and Kali, the latter's legal representatives being Naran, Jaladhar and Nisakar. (See paras. 9 and 14 of the written statement). The half share belonging to the branch of Kali, father of Jaladhar Naran and Nisakar devolved upon Nisakar's daughter Anudi, after whom defendant No. 1 inherited the half share in the 'B' schedule. The other half share of Dinei was succeeded on his death by his son Arjun and after him by defendant No. 1. So, defendants l and 2 were the joint owners of the 'B' schedule. The manner of passing of the property from hand to hand, as alleged in the plaint, has been denied. According to the defendants, Jaladhar did not become the sole owner by survivorship, nor did Pata acquire full ownership over 'B' schedule. So, transfer by her and the subsequent transfers culminating in the purchase by the plaintiff has not clothed the plaintiff with any title to the 'B' schedule property.

6. The suit was filed in the year 1976. Issues were framed on 4-1-78. Hearing of the suit was being adjourned on some ground or the other. On 3-12-79, defendants 1, 2 and 3 filed an application under Order 6, Rule 17 of the Civil P. C. for amendment of their written statements by way of substituting the genealogy given in para 30 and adding three paragraphs as paras 31, 32 and 33. The ground on which the amendment was sought is as follows:--

'That the aforesaid defendants have filed their written statement and are contesting the suit. In the earlier written statement, the genealogy which was given was not complete and certain other particulars were not incorporated in details although such defence has been taken in the earlier written statement. Further in view of the orders of the Court dated 16-11-79 for proceeding with the suit against defendants Nos. 1 to 3 and 7 to 9 and ordering the suit having abated against defendant No. 6, it is necessary to amend the written statement by way of incorporating as of defence, the plea of abatement of the entire suit, for a proper adjudication of the suit and for ends of justice it is necessary to amend me written statement as otherwise the defendants shall incur irreparable loss.'

7. As the reason would go to indicate the plea was that 'certain other particulars were not incorporated in details although such defence has been taken in the earlier written statement', which' amounted to a plea for permission to amplify or clarification of the existing pleadings which are either nebulous or cryptic. They did not plead for taking an inconsistent plea. They did not seek substitution of any of the paragraphs containing vital pleadings on the ground that those pleadings were mistaken because they had not the complete materials with them or that the pleadings were not properly framed by the counsel. They wanted amplification of the existing pleadings. The learned Munsif allowed the prayer for substitution of the genealogy; but rejected the rest of the prayers.

8. Now let us see what they sought to incorporate by way of amendment.-

'That the family property of both the branches were never partitioned in metes and bounds at any time neither before the 1928 settlement nor thereafter. But different persons of the family were possessing different lands for the sake of convenience amicably. The note of possession in the current Settlement Record of Rights does not reflect, the extent of lands according to the share of the parties. According to the genealogy Narayan, Nishakar and Siba have got two annas eight pahi interest, Bagi, the wife of Madan had two annas and eight pahi interest, Arjuna had two annas and eight pahi interest, Mini and her son Markanda both had four annas interest and Daitari had four annas interest. The note of possession recorded in the suit C. S. Khata has not been made in accordance with the aforesaid shares......'

By the stand taken in these, defendants 1, 2 and 3 have totally gone back on their stand in the written statements as disclosed in paras 9 and 14 thereof. I have already extracted the gist of the stand in paras 9 and 14 of their written statement. These defendants do not plead for substitution on the stand. They do not plead that the stand taken by them in para 9--that though there was a partition in the Behera family, the 'B' schedule fell to the share of Kali and Dinei and not to the exclusive share of Kali whose legal representatives are Naran, Jaladhar and Nisakar--is erroneous. While admitting the partition, they raise a dispute as to the allotment. Whereas it is the case of the plaintiff that 'B' schedule was exclusively allotted to the share of Kali's branch to which Naran, Jaladhar and Nisakar belonged, the defendants plea in the written statements is that the 'B' schedule was allotted to Dinei and Kali. Now the amendment proposed is a complete volte face and both the paragraphs cannot co-exist. These are not alternative pleas nor is para 31 sought to be introduced as substitution of what has been stated in paras 9 and 14. The defendants seek to wriggle out of the categorical admission in paras 9 and 14. The stand now taken conflicts with the stand already taken.

9. It is true that rules of procedure are hand-maid of justice and are not to be utilised as boobytraps for unwary suitors and prayer for amendment of the written statement should not be considered with the same rigour and strictness as prayer for amendment of the plaint, it is also no doubt true that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for purpose of determining the real questions in controversy between the parties. I need only quote the oft quoted dictum of. Lord Justice Bowen in Cropper v. Smith (1884) 26 Ch D 700:--

'It is well established principle that the object of Court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.......Iknow of no kind of error or mistake which is not fraudulent or intended to overreach, the Court ought not to correct if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace...... It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.'

In Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co., (AIR 1977 SC 680). it was observed (para 9):--

'......The defendants cannot be allowed to change completely the case made in paras 25 and 26 of the written statement and substitute an entirely different and new case.

It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paras 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.....'

In Biva's Pvt. Ltd. v. West Bengal Khadi & Village Industries Board (AIR 1977 Cal 333), it was held (At p. 335):--

'that by the proposed amendment the defendant tries to make out a new claim and to set up a new case than what was made in the earlier written statement. Moreover, by this proposed amendment the defendant is attempting to negative the admission that they were the sole selling agents of the products of the plaintiff.'

In Shaik Masthan Sahib v. Balarami Reddi (AIR 1953 Mad 958), it was held

'Where by, the proposed amendment the respondent sought to negate his own admission in the written statement it should not be allowed'.

10. As I have said a prayer for amendment clarifying the statement already made can be allowed (see ILR 72 HP 657) and where the statement has been made under a mistake, the court ought to be liberal in allowing the amendment (see Aintha Swain v. Nila-kantha Biswal: AIR 1969 Ori 267). In Aintha Swain's case the defendant by mistake stated the year of execution of the promissory note to be 1963 instead of 1962. During the course of argument in appeal, the mistake transpired. So, an application for amendment of the written statement was made. The defendant contended that the mistake had escaped his notice and was due to inadvertence. The appellate Judge having rejected the prayer, the matter came to the High Court. G. K. Misra, J. (as His Lordship then was) held (At p. 268):--

'.........It can hardly be denied that the defendant was not vigilant nor diligent. But the amendment cannot be rejected in all cases where there is a lack of vigilance or diligence on the part of the defendant. The crucial test is whether what the defendant avers now is true or not'

In Surji Dibya v. Achyutananda Biswal (1973 (2) Cut WR 1689), G. K. Misra, C. J., held that the inconsistency was on account of inadvertence and it was not a case of unequivocal admission which the defendants were being allowed to resile from and the true position was supported by the plaintiff's case.

11. I have already indicated that the defendants do not plead inadvertence or mistake. The tenor of their entire written statement as disclosed in paragraphs 9 and 14 is in total conflict with the stand now taken and, in my opinion, the learned trial Judge rightly rejected the prayer.

12. In the result, the revision has no merit and is dismissed. In the circumstances, there would be no order as to costs.


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