Dismissed

Kabita Biswal v. Niasi Biswal

Orissa HC5 Aug 2015WP(C)/9006/2004

Case brief

AI extract

What is this about?

This judgment dismisses a writ petition challenging a trial court's order allowing an amendment to the cause title of a plaint. The court held that the amendment was merely formal and did not change the suit's nature, distinguishing that civil orders are not amenable to certiorari and should be assailed under Article 227.

What did the court decide?

Petition dismissed; trial court directed to conclude the suit by end of January, 2016.

WP(C) No.9006 of 2004 5.8.2015 Challenge is made to the order dated 26.7.2004 passed by the learned Civil Jud ge (Senior Division), Khurda in C.S. No.80 of 2003 whereby and whereunder the learned trial co urt allowed the application for amendment of the plaint.

Jogeswar Biswal, son of the opposite party no.1, was working under the Station Commander 77 SU, Air Force Gujarat. While in service he died on 11.2.2002 leaving behind his mother-plaintiff and widow and son-defendant nos.6 and 7 respectively. Thereafter, the opposit e party no.1 as plaintiff laid C.S. No.80 of 2003 in the court of learned Civil Judge (Senior Division), Khurda for a decree of 1/3rd share of the property of her son and for permanent inj unction.

During pendency of the suit, an application for amendment of the plaint under Order 6 Rule 17 of the Civil Procedure Code was filed by the plaintiff stating therein that Ni asi Biswal-plaintiff is otherwise known as Amari Biswal and accordingly prayer has been made f or amendment of the cause title of the plaint, which was objected to by the defendants 6 and 7 . The same having been allowed, the instant petition has been filed.

It is submitted by Mr. Mishra, learned counsel for the petitioner that nowhere in the body of the plaint it is stated that Niasi Biswal is otherwise known as Amari Biswal. He further submitted that the proposed amendment will change the nature and character of the s uit.

In Radhey Shyam and another v. Chhabi Nath and others, (2015) 5 SCC 42 3, the apex Court has held that the judicial orders of the civil courts are not amenable to a writ of certiorari. Thus the order passed by a civil court can only be assailed under Article 227 of the Constitution of India.

Way back in the year 1954, the apex Court in the case Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215, has held that the power under Article 227 o f the Constitution is intended to be used sparingly and only in appropriate cases in order to keep the subordinate Courts and Tribunals within the bounds of their authority and not for cor recting mere errors.

Considering the present case on the anvil of the decisions cited supra it is seen that the proposed amendment describing the plaintiff-Niasi Biswal @ Amari Biswal w ill not change the nature and character of the suit. The proposed amendment is formal in natur e.

Kabita Biswal v. Niasi Biswal

Case brief

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Kabita Biswal v. Niasi Biswal

Case brief

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What did the court decide?

What the court decided

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