Allowed

Adikanda Maharana v. Jayanti Satpathy

Orissa HC22 Nov 2016CMP/1460/2016

Case brief

AI extract

What is this about?

This petition challenges the Additional Civil Judge's order allowing a plaint amendment under Order 6 Rule 17 CPC. The High Court held the amendment is pre-trial, formal, and does not alter the suit's nature, reversing the appeal and directing consolidation of three related land suits.

What did the court decide?

Petition allowed; amendment allowed subject to payment of Rs.5000 costs; direction to consolidate three related suits and conclude hearing by 31.03.2017.

This petition challenges the order dated 29.8.2016 passed by the learn ed Additional Civil Judge (Sr.Division), Balasore in M.S.No.57 of 2005. By the said order, the learned trial court allowed the application for amendment of the plaint.

Opposite party no.1 as plaintiff instituted a suit for realization of money impleading the petitioners as well as opposite parties 2 to 15 as defendants. Pursuant t o issuance of summons, defendants entered appearance and filed written statement denying the a ssertions made in the plaint. While the matter stood thus, the plaintiff had filed an applicat ion under Order 6 Rule 17 C.P.C. for amendment of the plaint stating therein that after filing of the suit, defendant no.1 and 9 have filed separate suits i.e., C.S.No.965 of 2005 and C.S. No.827 of 2005. After going through the plaints, she came to know about the certain facts. The learned trial court by order dated 20.3.2014 rejected the application. Aggrieved by the said order, she filed CMP No.456 of 2014 before this Court, which was disposed of on 16.2.2016 as w ithdrawn. As would be evident from the said order, during course of hearing, learned counsel f or the plaintiff-petitioner prayed for withdrawal of the application with liberty to file a fr esh application seeking formal amendment of the plaint. Thereafter the plaintiff filed an appl ication under Order 6 Rule 17 C.P.C..The defendants filed objection to the same. The learned t rial court allowed the application for amendment.

Mr.Rath, learned counsel for the petitioners argues with vehemence tha t earlier the plaintiff filed an application for amendment of the plaint. The same was rejecte d. Assailing the order, she filed CMP No.456 of 2014 and withdrew the same. Again an applicati on for amendment of the plaint has been filed incorporating the same facts. The proposed amend ment will change the nature and character of the suit.

Per contra, Mr.Bose, learned counsel for opposite party no.1 submits t hat liberty was granted by this Court to file an application for amendment of the plaint. Ther eafter the plaintiff filed an application for amendment. After considering the matter in its p roper perspective, the learned trial court allowed the application for amendment. The learned trial court assigned the following reasons:-

Perused the petition, objection as well as the plaint. It is not the disputed fact in the suit for the selfsame land, three suits are pending i.e the present suit, C.S.No. 827/05 filed by present def. No. 9 and C.S. No.965/05 filed by the present def. No.1. It is no t out of place to mention here that the plea of present def No.9 taken in C.S No. 827/05 has b een incorporated in the amendment by the present plaintiff and now the plaintiff wants to amen d the plaint on the ground of the pleading of the present def. No.1 as plaintiff in C.S No.965 /05. As the three records are being posted by this court on the same date, the court perused t he C.S No.827/05 more particularly the plaint which has been filed in the suit and came to a c onclusion that the present def.No.1 challenged the deed executed by him in favour of the prese nt def. No. 9 on the ground that the same is not a sale deed rather than a deed of mortgage. O n perusal of the plaint in C.S.

No.827/05, it is found that present def.No.9 being the plaintiff filed the suit claimi ng his right, title and interest on the basis of sale deed executed by the present def. No.1 i n his favour. So all the three suits gave a clear picture with regard to execution of two numb ers of deeds by def. No. 1 and the deed in favour of def.No. 9 is earlier than that of the pre sent plaintiffs.

plaintiff earlier to the proposed amendment and para-5of the plaint, the present plaintiff ad mitted about the right, title and interest of the present def.No.9. Now at para-6, 7, 8 and 10 , it is clear that the plaintiff wants to insert the plea of def. No.1 in the plaint but nowhe re in the proposed amendment has withdrawn his admission as reflected in para-5 of the plaint. So, the proposed

amendment is never intended to withdraw the earlier admission. For a patch of land, th ree suits have been filed with efferent pleas and if at all the present plea reflected in the proposed amendment will be allowed, the entire plea of the three suits can be adjudicated in t he present suit and which is very much essential to ascertain the read intention of def.No.1 t o execute a deed in favour of def.No.9 in the year 1981 of which the E.C. obtained by the plai ntiff was silent. It was much disputed by the defendants or their counsels that the present pl aintiff filed the consumer case against the Govt. for giving wrong information in the E.C. obt ained by the plaintiff and the consumer court imposed a penalty of Rs.5000/- to the Govt. The proposed amendment at para-6 to 8 and 10 are not the alternative plea rather the same is in co nsonance with the plea which has been taken by the plaintiff earlier and the same is essential to be adjudicated in the suit. Accordingly, I am of the considered view that the proposed ame ndment being the pre-trial amendment, should be allowed liberally with keeping in mind that th e same is required to be adjudicated in the suit.

As it appears, C.S.No.827 of 2005, C.S.No.965 of 2005 and M.S.No.57 of 2005 are pending adjudication before the learned trial court. In all the suits, parties are s ame. The issues in all the suits are substantially same. The assertions of the plaintiff that after going through the plaints in C.S.No.965 of 2005 and C.S.No.827 of 2005, she came to know about the certain facts. The learned trial court came to hold that the proposed amendment was never intended to withdraw the earlier admission. For a patch of land, three suits have been filed in different pleas. The proposed amendment is in consonance with the plea taken by the p laintiff and pre-trial amendment. On a conspectus of the application for proposed amendment, i t is evident that the proposed amendment is formal in nature. The same will not change the nat ure and character of the suit. There is no infirmity in the order passed by the learned trial court. But then the cost awarded by the learned trial court appears to be too low.

In view of the same, the proposed amendment is allowed subject to paym ent of cost of Rs.5000/-(five thousand) to the learned counsel for the defendants 9(Ka), 9(Kha ), 9(Ga), 9(Gha) and 9(Uan) in the court below. The learned trial court shall consolidate the three suits and conclude the hearing of the same by end of March, 2017 positively. The petition is disposed of.

Adikanda Maharana v. Jayanti Satpathy

Case brief

What is this about?

What did the court decide?

Adikanda Maharana v. Jayanti Satpathy

Case brief

What is this about?

What did the court decide?

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