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Khali and ors. Vs. Sadhaba Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 113 of 1966
Judge
Reported inAIR1967Ori58; 33(1967)CLT65
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115, 151 and 153 - Order 6, Rules 2 and 17
AppellantKhali and ors.
RespondentSadhaba Bewa and ors.
Advocates:Rajendra Mohanty, Adv.
DispositionRevision allowed
Excerpt:
.....new india assurance co. ltd. v smt rita 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 learned munsif failed to realise that by the amendment allowed a pew trial would begin on various new issues regarding existence of right of easement of a character not already pleaded......the plaintiff is given an opportunity to amend his plaint.'in accordance with the direction of the learned munsif, plaintiff filed an application for amendment which was opposed. ultimately the amendment was allowed on 25-3-1966. it is against this order the civil revision has been filed.2. the order of the learned munsif is wholly illegal and without jurisdiction. a judge hardly acts as a lawyer. it was not a part of the duty of the learned munsif to have sympathy for the plaintiff for the conflict arising between the pleadings and the evidence if the evidence is not in consonance with the pleadings, it may be thrown out. it is open to the judge also to accept the evidence if the conflict is not of a serious nature and both can be reconciled. but in no circumstance an amendment should.....
Judgment:
ORDER

G.K. Misra, J.

1. On 24-2-66 arguments in the suit were heard and the case was posted for judgment to 3-3-66. On that day the learned Munsif passed a queer and unprecedental order, which may be extracted:

'After going through the pleadings and the evidence adduced. I find that the evidence led by the plaintiff does not speak in terms of the plaint allegations. Such variation is due to the fact that after the institution of the suit some more circumstances have been cropped up.. .. . Therefore in order to read the evidence in terms of pleadings. I feel that it would he just and necessary to give the plaintiff an opportunity to amend the plaint. In the interest of justice and in order to keep the evidence In par with the pleadings, the plaintiff is given an opportunity to amend his plaint.'

In accordance with the direction of the learned Munsif, plaintiff filed an application for amendment which was opposed. Ultimately the amendment was allowed on 25-3-1966. It is against this order the Civil Revision has been filed.

2. The order of the learned Munsif is wholly illegal and without jurisdiction. A Judge hardly acts as a lawyer. It was not a part of the duty of the learned Munsif to have sympathy for the plaintiff for the conflict arising between the pleadings and the evidence If the evidence is not in consonance with the pleadings, it may be thrown out. It is open to the Judge also to accept the evidence if the conflict is not of a serious nature and both can be reconciled. But in no circumstance an amendment should be suggested and allowed by a Judge, merely because evidence and the pleadings do not tally. The learned Munsif failed to realise that by the amendment allowed a pew trial would begin on various new issues regarding existence of right of easement of a character not already pleaded.

3. In the result, the Civil Revision is allowed and the order of the learned Munsif allowing amendment is set aside. He must now proceed to deliver judgment on the basis of the materials already on record.

If he so chooses, he may hear the learnedAdvocates for the parties and then proceed todeliver judgment. As there is no appearance forthe opposite parties, there will be no order forcosts.


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