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Gadadhar Das Vs. Jatindranath Das and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 384 of 1979
Judge
Reported inAIR1981Ori142
ActsCode of Civil Procedure (CPC) , 1908 - Sections 21(2) - Order 6, Rule 17
AppellantGadadhar Das
RespondentJatindranath Das and ors.
Appellant AdvocateP.K. Pattanaik, Adv.
Respondent AdvocateP. Kar, Adv.
DispositionRevision dismissed
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..........is at the instance of defendant no. 1 challenging the order of the munsif, baripada, in a pending title suit rejecting an application for amendment made by the petitioner.2. opposite party no. 1 has filed title suit no. 6 of 1978 for declaration of his right, title and interest, recovery of possession of the disputed property and for mandatory injunction directing the defendant no. i to remove the encroachment from plaintiff's land. the plaintiff as also the defendant no. 1 are purchasers of different portions of the disputed property from defendants 2 and 3. defendant no. 1 entered appearance in the suit and filed his written statement denying the allegations in the plaint. he further pleaded that he had acquired title to the encroached portion by adverse possession. he applied to.....
Judgment:
ORDER

R.N. Misra, C.J.

1. This application under Section 115 of the Code of Civil Procedure is at the instance of defendant No. 1 challenging the order of the Munsif, Baripada, in a pending title suit rejecting an application for amendment made by the petitioner.

2. Opposite party No. 1 has filed title Suit No. 6 of 1978 for declaration of his right, title and interest, recovery of possession of the disputed property and for mandatory injunction directing the defendant No. I to remove the encroachment from plaintiff's land. The plaintiff as also the defendant No. 1 are purchasers of different portions of the disputed property from defendants 2 and 3. Defendant No. 1 entered appearance in the suit and filed his written statement denying the allegations in the plaint. He further pleaded that he had acquired title to the encroached portion by adverse possession. He applied to amend the written statement by insertion of a plea that the suit was grossly undervalued and the market value of the disputed property would not be less than Rs. 50,000. He asked for an alternate relief to be inserted regarding compensation for the construction already raised by him. He contended that he was a bona fide purchaser for value and even if he was asked to be evicted in terms or a mandatory injunction, he should be compensated for the improvement to the property made by him. That having been rejected, this application has been filed.

3. Section 21(2) of the Code of Civil Procedure, as amended, contains a provision that want of pecuniary jurisdictionof the court should be challenged at the earliest opportunity. The defendant in the original written statement did not raise the question of want of pecuniary jurisdiction and long after issues were settled and the suit had been set down for hearing, the amendment on the ground of want of pecuniary jurisdiction was sought to be raised on the plea that the improvement made was to the tune of Rs. 50,000. The plea of want of pecuniary jurisdiction is on the ground of the value of the construction. In my opinion, the learned trial Judge rightly refused to entertain the amendment at that stage. If the plea was accepted, the jurisdiction of the trial Court would be ousted. An amendment to oust jurisdiction should ordinarily not be granted particularly on a belated application for amendment. In my view, the order of rejection should be sustained and this application should be dismissed.

4. The revision fails and is accordingly dismissed, but without costs.


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