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Achhuta Mallick Vs. Magu Mallick and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 310 of 1972
Judge
Reported inAIR1974Ori183
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantAchhuta Mallick
RespondentMagu Mallick and ors.
Appellant AdvocateC. Sarangi, Adv. for ;Mohanty, Adv.
Respondent AdvocateS.S. Basu, Adv.
DispositionApplication allowed
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..........forma | deftd.no.7). _______________|_____________________________________ | | | achhuta dama kanhu(plaintiff) (adopted away) (died unmarried)the plaintiff's case is that the sale deed executed by magu (defendant no. 1) in favour of defendants 2 to 6 is void. defendants 2 to 6 filed a written statement alleging that the first defendant is the natural born son of kanhu and validly executed thesale deed. the plaintiff filed an application for amendment of the plaint on 3-11-1971 alleging that magu (defendant no. 1) was the natural born son of kanhu but had been adopted away to one radhu mallick of sibapur on 3-3-1934 and there was a registered document dated 19-7-1955 acknowledging the adoption. this amendment was rejected by the learned munsif saying that it changes the nature of the.....
Judgment:
ORDER

G.K. Misra, C.J.

1. The following genealogy as given in the plaint would show the relationship of the parties.

PADI MALLICK

|

_________________|__________________

| |

Kasi Bisi

| |

| Panu(Pro forma

| Deftd.NO.7).

_______________|_____________________________________

| | |

Achhuta Dama Kanhu

(Plaintiff) (adopted away) (died unmarried)

The plaintiff's case is that the sale deed executed by Magu (defendant No. 1) in favour of defendants 2 to 6 is void. Defendants 2 to 6 filed a written statement alleging that the first defendant is the natural born son of Kanhu and validly executed thesale deed. The plaintiff filed an application for amendment of the plaint on 3-11-1971 alleging that Magu (defendant No. 1) was the natural born son of Kanhu but had been adopted away to one Radhu Mallick of Sibapur on 3-3-1934 and there was a registered document dated 19-7-1955 acknowledging the adoption. This amendment was rejected by the learned Munsif saying that it changes the nature of the suit. There was also a further prayer for amendment that Kanhu did not die in 1935 but died in 1945. That also was rejected. This Civil Revision has been filed against the order refusing the amendments.

2. Doubtless, the facts stated in the plaint are somewhat different from those in the amendment application. Originally the plaintiff stated that defendant No. 1 is the son of one Radhu Mallick and he did not belong to the family of Kanhu. The second part of the statement is obviously wrong as it is admitted now in the amendment application that defendant No. 1 is the natural born son of Kanhu. The first part of the statement in the plaint that he was the son of Radhu Mallick obviously did not clarify the position that he was the adopted son of Radhu Mallick. In the amendment application the plaintiff has averred that despite the existence of registered acknowledgment of the adoption showing that the first defendant is the adopted son of Radhu Mallick and natural born son of Kanhu, the advocate for the plaintiff did not properly appreciate the instructions and committed the error in drafting the plaint. It is a matter of common knowledge that very often plaints are drafted by advocates without applying their mind to the documents given by the parties. It might not have been always deliberately done but such instances have very often come to the notice of Courts. This appears to be a case of that type. Otherwise the adoption of Magu by Radhu by acknowledgment in a registered document could not have been ignored. In such cases parties should not be allowed to suffer for the negligence or misconception of their advocates if the true picture is subsequently presented to the Court and sufficient explanation is offered why such errors were committed. I am, therefore, inclined to accept the plaintiff's explanation that it is due to the advocate not properly appreciating the instructions of the client that the first defendant was described as an utter stranger to the plaintiff's family. The plaintiff's present amendment is supported by document. The question would be altogether different whether such an averment would be established during trial.

3. The other document would also be allowed. It is also a matter of common knowledge that a mistake can be committed with reference to the date of death. To ask for a change of the date of death does not alter the nature of the suit.

4. I would accordingly allow both theamendments, set aside the impugned order ofthe learned Munsif and allow the CivilRevision. There will be no order as to costs.


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