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Anadi Behera Vs. Khatun Nisa Bibi - Court Judgment

LegalCrystal Citation
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 389 of 1976
Reported inAIR1978Ori151; 44(1977)CLT624
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantAnadi Behera
RespondentKhatun Nisa Bibi
Appellant AdvocateB. Rath, Adv.
Respondent AdvocateA.K. Padhi, Adv.
DispositionRevision allowed
Cases ReferredModi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co.
- 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 the plaintiff who happens to be his cousin brother for consideration under a registered sale deed,2. defendant denied acquisition of title by plaintiff and further pleaded that the plaintiff having alienated the property in favour of one baliani behera under a registered sale deed dated 29-1-1974 had no subsisting right, title and interest in the property.3. the trial commenced on 28th of october, 1976. plaintiff was examined as p.w. 3. in his cross-examination he admitted;'i have executed a sale deed in favour of baliani dei, w/o kartik behera on 29-1-74 for rupees 300/-. except this kabala i have not executed any other kabala in favour of baliani dei. kabala was scribed by ramakanta misra. the said plot relates to mauza karisa batila, plot no. 4, area 6 decimals under khata.....

R.N. Misra, J.

1. Plaintiff instituted Title Suit No. 96 of 1974 in the court of the Munsif at Jaipur for declaration of his right, title and interest as also possession over the disputed property said to be six decimals of cultivable land in plot No. 4 of khata No. 179, Alternately there was a claim for restoration of possession through court. The basis of plaintiff's title was one Gobinda Behera was recorded occupancy tenant and he died leaving behind his only son Haguri. The disputed land was an Intermediary interest which vested in the State under the provisions of the Orissa Estates Abolition Act. Haguri returned to his original abode in Jhadagram area of Midnapore district. On 19-10-1968, he transferred the property to the plaintiff who happens to be his cousin brother for consideration under a registered sale deed,

2. Defendant denied acquisition of title by plaintiff and further pleaded that the plaintiff having alienated the property in favour of one Baliani Behera under a registered sale deed dated 29-1-1974 had no subsisting right, title and interest in the property.

3. The trial commenced on 28th of October, 1976. Plaintiff was examined as P.W. 3. In his cross-examination he admitted;

'I have executed a sale deed in favour of Baliani Dei, w/o Kartik Behera on 29-1-74 for Rupees 300/-. Except this Kabala I have not executed any other Kabala in favour of Baliani Dei. Kabala was scribed by Ramakanta Misra. The said plot relates to mauza Karisa Batila, plot No. 4, area 6 decimals under Khata 179 .........The sale deed executed by ma in favour of Baliani is with her.'

In re-examination, P.W 3 stated:

'I have not sold suit land to Baliani Del, w/o Kartik. I have also not given possession of the same to her.'

In re-cross-examination, he stated:

'It is not a fact, I have sold disputed land to Baliani Dei.'

On 1-11-1976, plaintiff applied under Order 6, Rule 17 of the Civil P. C. for amendment of the plaint. The following pleading was asked to be inserted as para 2 (ka) in the plaint (as translated in English) :

'Plaintiff executed and registered a sale deed on 29-1-1974 in respect of the disputed property for a consideration of Rs. 300/- in the name of Baliani Dei, wife of Kartik Behera at the instance of Kartik. The sale deed was never given effect to, the consideration money had not been paid either by Baliani or her husband and the sale deed had remained with the plaintiff. Plaintiff is still in possession of the disputed property and neither Baliani nor her husband had ever entered into possession. Plaintiffs vendor Haguri Behera with the help of a relation Gagan Behera by name wanted to raise disputes with the plaintiff. Therefore, at Kartik's instance plaintiff had executed a sham sale deed in the name of Baliani. The sale deed wag not intended to operate or convey title in favour of the vendee,'

The defendant filed a written objection against the proposed amendment and maintained that it was inconsistent and contrary to the evidence of P.W. 3; if the amendment be allowed, It would nullify the effect of the cross-examination of the plaintiff and would cause serious injury, hardship and prejudice to the defendant; the amendment would also change the nature and character of the suit and would put the defendant to surprise. The learned Munsif dealt with certain decisions of this Court and rejected the petition. One of the main grounds that prevailed with him was that behind the back of Baliani, the alleged vendee of the plaintiff, tha character of the sale deed could not be adjudicated.

4. Plaintiff filed the suit on the basis of title obtained under Ext. 1. The amendment does not seek to disturb this plea of title. The suit was filed on 31-7-1974. The sale deed in favour of Baliani is dated 29-1-1974. As the plaintiff claimed about six months after the alleged sale deed that he had subsisting title, ft would follow that the plaintiff never accepted the position that the sale deed in favour of Baliani was a valid one which conveyed title in favour of Baliani. By amendment, plaintiff seeks to plead that his title has not been lost and the sale deed In favour of Baliani was without consideration and no title was intended to pass; it was a sham transaction for the purpose of meeting the threat advanced by the vendor of Ext. 1, Plaintiff asserts In his revision application that the sale deed was as a fact with him and has been produced from his custody. The admission in his evidence was under a confusion and did not represent the true state of facts.

I am satisfied after hearing parties that there is no question of introduction of a new case. In the original plaint, plaintiff claimed title on the basis of Ext. 1. Plaintiff still continues to maintain that he has title under Ext. 1 and all that the new plea seeks to raise is that the plaintiff's title acquired under Ext. 1 is subsisting and there has been no loss of it on the basis of an alleged sale deed in Savour of one Baliani. The learned Trial Judge's finding that a new case is introduced is, therefore, wholly untenable.

5. Mrs. Padhi for the defendant relies upon a decision of the Supreme Court in the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co., AIR 1977 SC 680, in support of the stand that where there hag been an admission made by the adversary, the same should not be allowed to be wiped out by amendment. The facts of the case before the Supreme Court are very different. Plaintiff had sued for recovery of a heavy sum of money. Defendants had made certain admissions in paragraph 25 of the written statement. Approximately three years after the filing of the written statement, an amendment was asked for to delete paragraph 25 and to replace the same by a new paragraph. The question for consideration was whether the defendants should be permitted to resile (from the admission contained in para 25, The trial court and the High Court had refused to allow the amendment and the Supreme Court upheld the refusal. The [facts in the present case are somewhat different. The admission is not contained En the pleading. While in the plaint title of the plaintiff has been pleaded, in the evidence certain statements were made with reference to a situation which Is not wholly untrue. By amendment plaintiff seeks to explain the situation. There are authorities and one of them has been referred to specifically in the impugned order of the trial court that even when there is an admission at the trial, the pleading may yet be permitted to be amended to introduce a different plea from what has been admitted,

6. In the Instant case, the written statement was filed on 6-11-1974 raising the plea of loss of title by plaintiff, Plaintiff should not have waited till the trial opened and he gave evidence for introducing the plea which he now seeks by amendment of the plaint, This seems to be more a case of negligence and laches than one where amendment should be refused on any other ground. In the circumstances adequate compensation would meet the prejudice that the defendant may have to suffer by protracting the trial. To meet the objection advanced by the defendant and accepted by the trial court, Mr, Rath for the plaintiff has agreed to implead Baliani Dei as a party and has undertaken to apply for amendment before the trial court within two weeks of receipt of the record. If such an application is made, Baliani should be impleaded so that the entire matter may be adjudicated In a comprehensive way and there may not be multiplicity of litigation.

7. I would accordingly allow the revision petition, direct that the amendment asked for be granted and in case the plaintiff applies to implead Baliani Dei as a defendant within the time indicated, the same also be allowed. Baliani would have certainly an opportunity of filing a written statement and defendant would also have an opportunity of filing an additional written statement if he so likes. The amendment would be in terms of costs of rupees of one hundred to be paid by the plaintiff to the defendant within one month from today. The amount may be paid to counsel for the defendant in the trial court or be deposited to the credit of the defendant therein. If the costs are not paid as directed and if the amendment undertaken to be made in the trial court and an application to implead Baliani be not made in the trial court as undertaken, the application for amendment would stand dismissed and the order passed in the revision application would not be operative.

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