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Kedarnath JaIn Vs. Shripal Mahajan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 681 of 1980
Judge
Reported inAIR1984Ori199
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 7
AppellantKedarnath Jain
RespondentShripal Mahajan and ors.
Appellant AdvocateJ.P. Mishra, Adv.
Respondent AdvocateS.S. Swain, Adv.
DispositionRevision allowed
Cases ReferredAnitha Swain v. Nilakantha Biswal
Excerpt:
.....after the civil court commissioner submitted his report the defendants did not like to amend their written statement during the pendency of the suit and they slept over the matter for nearly four years after filing of the appeal and that the proposed amendment was not necessary for determining the controversy between the parties. it is well settled that rules of proceedings are intended to be a handmaid to the administration of justice and a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. the court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be..........it was in possession of the plaintiff. they asserted that defendant t was in possession of the suit land along with other lands since 31-10-1943 on acquiring the same from yudhistir bagarty, sahadev bagarty and sadasiv bagarty. in para 12 of the written statement the defendants stated that the suit was barred by law of limitation as defendant 1 had perfected his title in respect of the suit land.2. the trial court framed as many as six issues of which issue 3 was whether the plaintiff had right, title and interest over the suit property and issue 4 was to the effect that whether the defendants had perfected their title over the suit property by adverse possession. while dealing with these two issues which were taken up together the trial court in para. 5 in the judgment proceeded on.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. One of the defendants in Title No. 215 of 1971 now pending in appeal T.A. No. 60/8 of 1975-30 in the court of the Additional District Judge, Bhawanipatna, is the petitioner in this case challenging the order D/-- 19-7-1980 by the appellate court rejecting the application for amendment of the written statement.

The opposite party 1 filed the suit for declaration of his title over the disputed land and for delivery of possession of the same after demolition of any structure built thereon by the defendants and to restrain them from encroaching upon the disputed land. The gist of the plaintiff's case was that ho was the owner of plot No. 352 of village Tusra and the defendants were the owners of plot No. 351 of the same village, the two plots being contiguous to each other. The disputed land, a part of plot No. 3152 measuring 13 in length and 6 in width towards the East and 1 width towards the West, was all along in possession of the plaintiff and was being utilised as a cowshed. The plaintiff further averred in the plaint that on 10-3-1971 the defendants taking advantage of his absence from the village forcibly encroached upon the disputed land and occupied the same and hurriedly constructed a room by amalgamating the disputed land with the portion of the village lane which they had encroached.

The defendants in their written statements while dealing with the assertions in the plaint stated thus:

'That contents of para 2 are partly true and partly false. It is false to say that the defendants have encroached upon the village lane and they have made any construction, thereon. The rest are true and admitted.'

The defendants denied that the disputed land was a part of plot No. 352 and that it was in possession of the plaintiff. They asserted that defendant t was in possession of the suit land along with other lands since 31-10-1943 on acquiring the same from Yudhistir Bagarty, Sahadev Bagarty and Sadasiv Bagarty. In para 12 of the written statement the defendants stated that the suit was barred by law of limitation as defendant 1 had perfected his title in respect of the suit land.

2. The trial court framed as many as six issues of which issue 3 was whether the plaintiff had right, title and interest over the suit property and issue 4 was to the effect that whether the defendants had perfected their title over the suit property by adverse possession. While dealing with these two issues which were taken up together the trial court in para. 5 in the judgment proceeded on the basis that admittedly plot 352 belonged to the plaintiff and while according to the plaintiff the suit land was a part, of plot No. 352, the case of the defendant was to the effect that the same did not appertain to that plot. The trial court ultimately decreed the suit in part against the defendants, declared the title of the plaintiff over the suit land and directed the defendants to deliver the vacant possession of the suit land within two months, failing which the plaintiff was at liberty to take vacant possession of the same through court after demolition of the structure thereon.

3. Being aggrieved by the aforesaid judgment the defendants approached the appellate court in Title Appeal No. 60/80 of 1975-60. In the said appeal an application D/- 16-4-1980 for amendment of the written statement was filed. Amendment sought was to the following effect:--

'The last sentence of para 2 of the written statement he deleted and in its place the following sentence be added: 'It is false to say that the plaintiff is the owner of the entire plot No. 352 of village Tusra. The plaintiff is the owner of a portion of plot No. 352 measuring an area of Ac. 0.02 dec. and he is not the owner of the lands mentioned in theschedule of the plaint.'

It was stated in the petition for amendment that by mistake the defendants, in their written statements had not denied the said statements in para 2 of the plaint that the plaintiff was the owner of plot No. 352 of village Tusra. Such omission was stated to he due to mistake on the part of the counsel appearing for the defendants.

4. The plaintiff-respondent opposed the application for amendment mainly on the ground that the proposed amendment would negative the admission contained in the written statement and it would completely change the nature and character of the suit.

5. The appellate court rejected the application for amendment holding that the defendants had not made any admission in the written statements duo to any misconception of their lawyer drafting the same; that after the Civil Court Commissioner submitted his report the defendants did not like to amend their written statement during the pendency of the suit and they slept over the matter for nearly four years after filing of the appeal and that the proposed amendment was not necessary for determining the controversy between the parties.

The question that arises for consideration is whether in the facts and circumstances of the case the lower appellate court was justified in rejecting the application for amendment of the written statement. It is well settled that rules of proceedings are intended to be a handmaid to the administration of justice and a party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs However negligent or careless may have been, the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side (Jai Jai Ram Manohar Lal v. National Building Material Supply Gurgaon) (AIR 1969 SC 1257). However, there are exceptions to this rule with which we are not concerned in the present case. In a recent decision reported in AIR 1983 SC 462 (Panchdeo Narain Srivastava v. Km. Jyoti Sahay) the Supreme Court held that an admission made by the party may be withdrawn or may be explained away and, therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. This Court in the case of Gobinda Sahoo v. Ram Chandra Nanda, AIR 1974 Orrisa 36, took a similar view, G.K. Misra, C.J. (as he then was) observed as follows (para 4):--

'Where an admission appears to have been made by inadvertence or erroneously in ignorance of law due to the fault of the advocate, an amendment may be allowed even if the effect of an admission may be taken away.'

6. Applying the principles enunciated in the cases referred to above to the facts of the present case it is true that the entire case has proceeded on the basis that the plaintiff is the owner of the entire plot No. 352 of the village Tusra and the attention of the court has been engaged only to the question whether the disputed land is a part of plaintiff's plot No. 352 or defendants plot No. 351. But it cannot be overlooked that the plaintiff came to court for declaration of his title in respect of plot No. 352 and for recovery of possession of the disputed land which according to him was a part of the said plot and for permanent injunction against the defendants. Indeed the trial court framed an issue about the title of the plot i.e. issue 2. Hence, it cannot be said that the question whether the plaintiff is the owner of the entire plot No. 352 or only a portion of it, is not material for a full and complete adjudication of the matter. It is also true that the defendants have been recalcitrant in not taking prompt steps to amend their written statements either during the pendency of the appeal or at the time of filing of the appeal. But that is no ground to reject the amendment as has been held in the decision referred to above, in the case of Anitha Swain v. Nilakantha Biswal, (AIR 1969 Orissa 267) an application for amendment of the written statement filed on the day the argument in appeal was concluded in this court and judgment was reserved, was accepted. It is worth noting here that the defendants had filed several documents which were not accepted in the trial court (Exts. E and G to J) showing that the plaintiff owned only a portion of plot No. 352 and not the whole of it. The trial court refused to consider these documents solely on the ground that the defendants had not disputed the assertion of the plaintiff that he was the owner of plot No. 352.

7. In these circumstances, in my view, ends of justice will be served in permitting the defendants to amend their written statement as prayed for in their application. The lower appellate court erred in rejecting the same mainly on the ground of the delay and laches on their part in filing their application for written statement. Since the defendants are guilty of delaying the matter they should compensate the plaintiff by costs.

In the result, the civil revision is allowed, and the order of the lower appellate court rejecting the application for amending the written statement is set aside. The application for amending the written statement is accepted subject to payment of Rs. 250/- (two hundred and fifty) towards costs to the plaintiff within four weeks from to-day, failing which this order shall not operate and the impugned order shall stand confirmed. Both the parties are to bear their own costs for this proceeding.


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