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Jagannath Sahoo and ors. Vs. Labanya Dei and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 54 of 1979
Judge
Reported inAIR1981Ori12; 50(1980)CLT219
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantJagannath Sahoo and ors.
RespondentLabanya Dei and ors.
Appellant AdvocateS. Misra, Adv. for No. 2
Respondent AdvocateP.K. Misra, Adv.
DispositionRevision dismissed
Excerpt:
.....1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 3. on careful consideration of the matter i am satisfied that the order of the court below refusing the prayer for amendment is perfectly correct and iusti-fied. 4. on hearing the counsel appearing for both the parties and on going through the pleadings, the relevant portions of the evidence and the impugned order, i am satisfied that the order reiecting the prayer for amendment is perfectly correct and justified. 5. before parting with this case i would like to mention that the court below while proceeding to decide the case should not be influenced or feel bound by the observations made by it in the impugned order regarding the evidence on record, and it shall deliver its judgment..........and character of the original suit will be changed, a new issue is to be framed for deciding the facts alleged in the said portion for which there is no material on record, and that there is no evidence or material on record regarding the fraud alleged in the proposed amendment.3. on careful consideration of the matter i am satisfied that the order of the court below refusing the prayer for amendment is perfectly correct and iusti-fied. apart from the fact that the prayer for amendment was made at a very late stage, the facts sought to be added in the prayer portion of the proposed amendment are entirely new and alien to the facts alleged in the original plaint. the suit is for permanent injunction on the basis that the suit properties are being used as communal lands by residents of a.....
Judgment:
ORDER

S. Acharya, J.

1. The plaintiffs' suit, as originally filed, is for permanent injunction against the defendants by declaring that the suit property is 'the communal property of the Sahi of the plaintiffs' and for costs. After the evidence on behalf of both the parties was recorded and argument in part was heard a petition for amendment of the prayer portion of the plaint was filed by the plaintiffs in the court below. That petition having been rejected, this Civil Revision has been filed by the plaintiffs.

2. The amendment prayed for is as follows:--

After the prayer (a) of the plaint it be added;

'that the records obtained by fraud by the defendants and their predecessors-in-interest are not binding on the plaintiffs.' The court below has held that by allowing such an amendment the nature and character of the original suit will be changed, a new issue is to be framed for deciding the facts alleged in the said portion for which there is no material on record, and that there is no evidence or material on record regarding the fraud alleged in the proposed amendment.

3. On careful consideration of the matter I am satisfied that the order of the court below refusing the prayer for amendment is perfectly correct and iusti-fied. Apart from the fact that the prayer for amendment was made at a very late stage, the facts sought to be added in the prayer portion of the proposed amendment are entirely new and alien to the facts alleged in the original plaint. The suit is for permanent injunction on the basis that the suit properties are being used as communal lands by residents of a particular Mahala of the plaintiffs' village. The facts now sought to be introduced by way of amendment were neither directly nor indirectly mentioned in the plaint; the plaintiffs have not adduced any evidence on this matter and the defendants were not called upon to have their say on this aspect. That being so, the relief prayed for by the amendment cannot be granted on the pleadings and evidence on record. So, if the prayer for amendment is allowed, the court would be required to frame new issues on this aspect and has to allow both the parties to lead evidence for and against the facts alleged therein. That will open out flood gates for adducing further evidence in the case entirely on new facts and issues. Moreover, the issue involved in the proposed amendment being entirely new to the facts alleged in the original plaint, consideration of such issues would change the tenor, character and the nature of the suit in its entirety. Apart from the above considerations, there is nothing in the plaint and/or in the amendment asked for about the details which are required in law to be stated in a case of 'fraud' alleged in the proposed amendment.

4. On hearing the counsel appearing for both the parties and on going through the pleadings, the relevant portions of the evidence and the impugned order, I am satisfied that the order reiecting the prayer for amendment is perfectly correct and justified. The Civil Revision is accordingly dismissed.

5. Before parting with this case I would like to mention that the court below while proceeding to decide the case should not be influenced or feel bound by the observations made by it in the impugned order regarding the evidence on record, and it shall deliver its judgment in the case in accordance with Law independent of the said observations.

The L.C.R. be sent back immediately.


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