Allowed

Hemalata Mohapatra v. Baikuntha Mohapatra

Orissa HC16 Nov 2015WP(C)/6279/2005

Case brief

AI extract

What is this about?

In a writ petition, the single judge quashed the order dismissing an application for amendment of the plaint. The court held the amendment was formal, did not alter the suit's character, and would not prejudice defendants, directing the trial court to allow it.

What did the court decide?

The impugned order dismissing the amendment application was quashed; proposed amendment allowed subject to payment of costs; suit hearing to conclude by April 2016.

16.11.2015 Assailing the order dated 20.04.2005 passed by the learned Civil Judge (Sr. Di vn.), Jagatsinghpur in T.S. No.214 of 1995, the instant petition is filed under Article 227 of the Constitution of India. By the said order, learned trial court rejected the application of the plaintiffs for amendment of the plaint.

The petitioners as plaintiffs instituted a suit being T.S. No.214 of 1995 impl eading the opposite parties as defendants in the court of the learned Civil Judge (Sr. Divn.), Jagatsinghpur for partition. Pursuant to issuance of summons, the defendants entered appearan ce and denying the assertions made in the plaint. While the matter stood thus, the plaintiffs filed an application for amendment of the plaint for correction of the year 1952 in paragraph 2 of the plaint to 1950 and to incorporate the case number of O.E.A. case from 71161 to 3736 i n paragraph 4 of the plaint. The defendants filed an objection. Learned trial court by order d ated 20.04.2005 dismissed the said application.

Learned trial court came to hold that the suit was decreed exparte. On the bas is of the averments made in the plaint, the exparte order was passed. The subsequent correctio n of the same by way of amendment will bring new facts. It is further held that the plaintiffs have not assigned the reasons for correction of such facts. No such document has been filed. The approach of the learned trial court is clearly wrong.

In an application for amendment, the court has to consider as to whether the s ame is necessary for the purpose of determining the real controversy between the parties and w hether the proposed amendment will change the nature and character of the suit.

On a conspectus of the proposed amendment, it is evident that the same is form al in nature and will no way change the nature and character of the suit. The proposed amendme nt is required for determination of the real dispute between the parties. The foundational fac t already exists. In the event, the proposed amendment is allowed, the same will not cause any prejudice to the defendants.

In view of the same, the order dated 20.04.2005 passed by the learned Civil Ju dge (Sr. Divn.), Jagatsinghpur in T.S. No.214 of 1995 is quashed. The proposed amendment is al lowed subject to payment of cost of Rs.2,000/- (rupees two thousand) to the counsel for the de fendants in the court below within a period of four weeks from today. The learned trial court is directed to conclude the hearing of the suit by end of April, 2016.

Hemalata Mohapatra v. Baikuntha Mohapatra

Case brief

What is this about?

What did the court decide?

Hemalata Mohapatra v. Baikuntha Mohapatra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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