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Smt. Sabitri Debi Vs. Ramachandra Mishra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 202 of 1982
Judge
Reported inAIR1985Ori245
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantSmt. Sabitri Debi
RespondentRamachandra Mishra and ors.
Appellant AdvocateR.K. Mohapatra, ;B. Routray and ;U.C. Panda, Advs.
Respondent AdvocateG. Rath and ;M. Mishra, Advs.
DispositionApplication dismissed
Cases Referred(Panchdeo Narain Srivastava v. Km. Jooti Sanay
Excerpt:
.....aforesaid, this requirement cannot be said to have been satisfied in the present case and hence the trial court cannot be said to have erred in rejecting the application for amendment of the plaint......amendment add the following below para 3 of the plaint.'that the schedule 'b' property is the separate property of late harekrushna.'in the application it was stated that since defendant nos. 1 4, 5 and 6 amended their written statement and stated that the schedule 'b' property is the ancestral coparcenary property of harekrushna though they had previously stated that the schedule 'b' property is his self-acquired property, it is necessary to amend the plaint.4. the amendment was opposed on behalf of the contesting defendants mainly on the ground that it takes away the effect of the admission of the plaintiff that 'b' schedule properties are the joint family properties of late harekrushna which she could not be permitted to do. this objection was accepted by the trial court and by the.....
Judgment:
ORDER

D.P. Mohapatra, J.

1. Being aggrieved by the order dated 6-2-1982 of the Addl. Subordinate Judge, Cuttack in Title Suit No. 5 of 1978 rejecting her application for amendment of the plaint, the plaintiff has filed this application under Section 115, of the Civil P.C. challenging the said order.

2. The petitioner filed the suit praying for a preliminary decree for her l/12th share in Schedule 'B' and 1/4th share in Schedule 'B-1' and for specific allotment of the same, Para 3 of the plaint, which is relevant for the present purpose initially reads as follows: --

'That the properties described in the Schedule 'B' of the plaint is the joint family immovable properties belonging to the branch of Harekrushna in which the share of Bidyadhar alias Budhi is 1/3rd and that of Jadu is 1/3rd and the remaining 1/3rd belongs to the branch of Padmanav.'

Separate written statements were filed on behalf of defendant No. 2, on behalf of defendant Nos. 1, 4, 5 and 6, on behalf of the defendant Nos. 12 to 23, on behalf of defendant No. 9 and on behalf of defendant No. 11. Defendant Nos, 1, 4, 5 and 6 in their written statement in paras 10 and 11, which are relevant for the purpose of the case stated as follows : --

Paragraph-10

'That the averments made in para 3 of the plaint are to be proved by the plaintiff and these defendants do not want to comment on it.' Paragraph-11

'That the allegations made in para 4 of the plaint are false and baseless and as such they are denied. It is not correct to say that after the death of Bidyadhar alias Budhi on 1-9-1937 his 1/3rd interest in the Schedule 'B' property devolved upon his widow Subhadra and his, son Ramchandra, defendant No. 1 and Subhadra died at a ripe old age of 78 years on 1-3-1974 and according to Hindu Succession Act 1956 her 8 annas interest in l/3rd share of Bidyadhar in the Schedule 'B' property devolved upon defendant No. 1 and that the plaintiff and the defendant No. 1's share in Schedule 'B' property is l/17th, in total 'B' Schedule property and that the plaintiff and defendant No. 1, were in joint possession of the 1/3rd share of late Bidyadhar alias Budhi without any partition by metes and bounds. As a matter of fact Bidyadhar was never called and known as Budhi and he was all along called and known as Bidyadhar, who died on 9-10-1936. At the time of death of Bidyadhar, the karta of the joint family was Harekrushna and the properties mentioned in Schedule 'B' is the self-acquired properties of said Harekrushna.' Subsequently by order dated 8-2-1980 the trialCourt permitted these defendants to correctthe last sentence in the paragraph of the writtenstatement quoted above substituting the words'ancestral coparcenary' in place of 'selfacquired.'

3. The plaintiff-petitioner filed an application on 18-1-1982 before the trial court seeking to amend the plaint in the mannerindicated below.

Proposed amendment

Add the following below para 3 of the plaint.

'That the schedule 'B' property is the separate property of late Harekrushna.'

In the application it was stated that since defendant Nos. 1 4, 5 and 6 amended their written statement and stated that the schedule 'B' property is the ancestral coparcenary property of Harekrushna though they had previously stated that the Schedule 'B' property is his self-acquired property, it is necessary to amend the plaint.

4. The amendment was opposed on behalf of the contesting defendants mainly on the ground that it takes away the effect of the admission of the plaintiff that 'B' schedule properties are the joint family properties of late Harekrushna which she could not be permitted to do. This objection was accepted by the trial court and by the impugned order the petitioner's application for amendment of the plaint was rejected.

5. Sri R. K. Mohapatra, learned counselfor the petitioner contends that the trial courtfell into an error in assuming that the proposedamendment takes away the effect of theadmission, if any, of the plaintiff in para 3 ofthe plaint and even if that is the effect of theproposed amendment, it is no ground to rejectthe application. Mr. Mohapatra furthercontends that if the proposed amendment isallowed, the contesting defendants will not beprejudiced in any manner.

6. Sri G. Rath, learned counsel for the opposite parties, on the other hand, contendsthat the trial court has rightly rejected the petition for amendment of the plaint, since the facts and circumstances of this case do notmake out any case for permitting such amendment.

7. From the facts narrated in the foregoing para it is clear that initially the plaintiff took the stand in para 3 of the plaint that schedule 'B' properties were ancestral joint family properties belonging to the branch of Harekrushna in which Bidyadhar @ Budhi, Jadu and Padmanav have 1/3rd interest each.

8. In the written statement filed by the defendant Nos. 1, 4, 5, and 6 though initially a Stand was taken that 'B' schedule properties were the self-acquired properties of late Harekrushna, but subsequently by amendment the said defendants changed the stand to the effect that the said properties were ancestral coparcenary properties of Harekrushna, thus, taking a stand similar to that taken by the plaintiff. Now, by the proposed amendment the plaintiff wants to change her stand to state that 'B' schedule properties are the separate properties of late Harekrushna. The only reason stated in the application for amendment is that, since the contesting defendants have changed their stand, the petitioner wants to follow suit.

9. The courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent.

In the present case, as the learned counsel for the petitioner himself contends, the effect of the statement made in para 3 of the plaint is in no way affected by the proposed amendment. If this is so then the proposed amendment is neither relevant nor necessary.

The learned counsel for the petitioner has not been able to show how the proposed amendment is necessary for proper adjudication of the case. The reason given by the trial court for rejecting the application that the amendment, if allowed, would take away the effect of an admission contained in the plaint made by the plaintiff, may not be absolutely correct, in view of the principles laid down in the Supreme Court decision reported in AIR 1983 SC 462 (Panchdeo Narain Srivastava v. Km. Jooti Sanay), wherein the court has held that in appropriate circumstances an admission of fact can be withdrawn by amendment since such an admission could be explained or withdrawn by the concerned party in course of his examination in court. But that does not affect the fundamental requirement, which is satisfied in all cases of amendment of pleadings, that the proposed amendment is necessary for effective adjudication upon the dispute between the parties.

10. In view of the discussions aforesaid, this requirement cannot be said to have been satisfied in the present case and hence the trial court cannot be said to have erred in rejecting the application for amendment of the plaint. Accordingly, the revision petition is dismissed as devoid of merit, but in the circumstances of this case there would be no order for costs of this proceeding.


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