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Bhubaneswar Patel Vs. Janak Patel and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 418 of 1975
Judge
Reported inAIR1976Ori216; 42(1976)CLT1018
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantBhubaneswar Patel
RespondentJanak Patel and ors.
Appellant AdvocateG. Rath, ;R.K. Rath and ;N.C. Panigrahi, Advs.
Respondent AdvocateR.C. Patnaik and ;P.K. Misra, Advs.
DispositionRevision dismissed
Cases ReferredDoss Ram Doss v. Mehendro Roy Decha
Excerpt:
.....1993 (2) glr 430 and 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]. - lala pancham) the court held that where the plaintiffs made out a new case for which there is not the slightest basis in the plaint as it originally stood, there is a strong ground for rejecting amendment 5-c. 7. in the premises aforesaid, the learned district judge was perfectly justified in rejecting the prayer for amendment......no. 79 of 1967 in the court of the subordinate judge of bolangir for declaration of title to the suitlands which were under attachment in a proceeding under section 145, criminal p. c. they claimed ownership of the suit lands having purchased the same from one indra patel by means of a registered sale deed dated 12-2-1964 vide ext. 1. the defendants denied the plaintiff's title and contended that indra patel had adopted defendant no. 3 as a son, and had executed a registered deed of acknowledgement of adoption in his favour on 2-12-1958. subsequently, by about 1963 the said indra patel and defendant no. 3 developed misunderstanding as a result of which indra was frequently living away from defendant no. 3. it was alleged that taking advantage of indra's old age and the strained.....
Judgment:
ORDER

P.K. Mohanti, J.

1. This revisional application under Section 115 of the Code of Civil Procedure is directed against an order of the learned District Judge of Bolangir rejecting an application for amendment of the plaint.

2. The petitioner and opposite party No. 4 filed Title Suit No. 79 of 1967 in the Court of the Subordinate Judge of Bolangir for declaration of title to the suitlands which were under attachment in a proceeding under Section 145, Criminal P. C. They claimed ownership of the suit lands having purchased the same from one Indra Patel by means of a registered sale deed dated 12-2-1964 vide Ext. 1. The defendants denied the plaintiff's title and contended that Indra Patel had adopted defendant No. 3 as a son, and had executed a registered deed of acknowledgement of adoption in his favour on 2-12-1958. Subsequently, by about 1963 the said Indra Patel and defendant No. 3 developed misunderstanding as a result of which Indra was frequently living away from defendant No. 3. It was alleged that taking advantage of Indra's old age and the strained relationship between him and defendant No. 3 the plaintiffs obtained a fraudulent sale deed in respect of the suit lands on false representations without payment of consideration. The trial Court dismissed the suit holding that the sale deed (Ext. 1) was devoid of consideration and that Indra Patel never intended to transfer title to the suit land in favour of the plaintiffs and as such the plaintiffs did not acquire any title by virtue of the sale deed. Aggrieved by this decision, the plaintiffs filed Title Appeal No. 58 of 1973 in the Court of the District Judge on 24-9-1973- About two years thereafter, that is, on 8-8-1975 the plaintiffs-appellants applied for amendment of the plaint by introducing a new case that they had acquired title to the suit lands by inheritance. It was alleged that Indra had three other brothers namely Kirti, Ugre and Paleswar; that Paleswar had been given away in adoption and that by the time of Indra's death, Kirti and Ugre were his natural heirs and successors. The plaintiffs are the sons of Kirti and they claimed to have inherited the suit lands along with Ugre. There is no averment as to whether Ugre is alive or dead. Neither Ugre nor his heirs are parties to the suit.

3. The prayer for amendment of the plaint was rejected by the learned District Judge on the grounds that:

(i) it sought to introduce a new case,

(ii) it would entail addition of new parties and investigation of new facts as to whether Kirti and Ugre were alive at the time of death of Indra and whether the plaintiffs are the heirs of Kirti and Ugre and

(iii) it was made at a very late stage.

Aggrieved by this decision plaintiff No. 1 has come up in revision to this Court.

4. Mr. G. Rath, the learned counsel appearing on behalf of the petitioner urged that in order to avoid multiplicity of proceedings and as no prejudice would be caused to the defendants the amendment should be allowed. In my opinion these are not normal tests for considering whether an application for amendment of a pleading has to be allowed. Ordinarily a plaintiff's case is restricted to the original cause of action pleaded, but to avoid multiplicity of proceedings, subsequent events may also be allowed to be pleaded during the pendency of the proceeding by amendment of the plaint. The plaintiffs sought for declaration of title on the strength of their purchase. By the proposed amendment they claimed title by inheritance. The amendment sought for would alter the very foundation of the claim and introduce a distinct and separate cause of action. It would not, therefore, come within the purview of amendment of pleading at all. On the other hand it would be substitution of a new suit in place of the old one. The amendment sought for appears on the face of it to be an afterthought and totally disjunct from the original plaint.

5. Rule 17 of Order 6 of the Code of Civil Procedure says that the Court may allow amendments which would be found necessary for the purpose of determining the real question in controversy between the parties. The real question in controversy between the parties is whether the plaintiffs have acquired title to the suit lands by virtue of their purchase under the sale deed Ext. 1. By the proposed amendment they seek to introduce a different title by way of inheritance. The amendment if allowed would convert; the suit into another of a totally different character. Expediency of avoiding multiplicity of proceedings is no ground to allow the amendment which will change the fundamental character of the suit. IN AIR 1943 Pat 206 (FB), (Sadhu Sharan v. Deonath Saran) their Lordships held that it is neither permissible in law nor desirable in equity to allow amendment of plaint which would change cause of action for the suit and would mean a re-trial to the whole case on a new footing at a late stage.

5-A. In AIR 1960 Pat 54, (Jagdish Pander v. Rameshwar Chaubey) it was held that where the whole basis of the suit would be changed necessitating a fresh trial from the beginning amendment should be refused.

5-B. In AIR 1965 SC 1008, (Municipal Corporation of Greater Bombay v. Lala Pancham) the Court held that where the plaintiffs made out a new case for which there is not the slightest basis in the plaint as it originally stood, there is a strong ground for rejecting amendment

5-C. The case of Doss Ram Doss v. Mehendro Roy Decha, (1872) 18 Suth WR 274 appears to be directly on the point. It was held in that case:

'We think that the plaintiff, having set up a title by purchase of the whole property from Kishen Chunder, is not now at liberty to change his case entirely, and to come in and set up another and inconsistent title, apparently founded either on inheritance or joint purchase with Kishen Chunder.'

5-D. In AIR 1950 Mad 32 (Gopala-krishnamurthi v. Sreedhara Rao) the Court held that where certain facts are alleged which facts were available to the plaintiff and which the plaintiff has not chosen to mention in the original plaint it would not be open to the Court to permit such an amendment as it would permit a new case to be made on facts which were available but were not pleaded.

6. In the present case the plea that the plaintiffs had acquired title to the suit lands by inheritance was available to them when they filed the suit but such a case was not made out in the plaint. Allowing the amendment at this stage would necessitate remand of the suit to the trial Court, addition of new parties, filing of fresh written statement, framing of fresh issues and recording of fresh evidence.

7. In the premises aforesaid, the learned District Judge was perfectly justified in rejecting the prayer for amendment. The Civil Revision stands dismissed with costs.


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