Allowed

Dhani @D.Parida v. Bansidhar Parida

Orissa HC17 Nov 2016WP(C)/20378/2012

Case brief

AI extract

What is this about?

The High Court under Article 226/227 quashed the lower court's order rejecting amendment petitions in a partition suit. The judgment held the trial court failed to compare documents to verify if corrections introduced new property into the suit, a required exercise before rejection.

What did the court decide?

The writ application was allowed; the trial court is directed to reconsider and dispose of the amendment petitions afresh in accordance with law.

12. 17.11.2016 The petitioner being the plaintiff of T.S. No. 315 of 1990 on the file of learned Civil Judge (Sr.Divn.), Nimapara by filing this application under Article 227 of the Constitution has sought for quashment of an order dated 2.4.2012 in course of final decree proceeding wherein his first petition for amendment of the petition to make th e preliminary decree final touching the subject matter of the suit has been rejected and so al so the other petition for amendment of the plaint and consequentially the preliminary decree h as not been found favour with. 2. Heard learned counsel for the petitioner and learned counsel for the opp.parti

Perused the copy of the petition for amendment of the plaint filed by this pet itioner for making the preliminary decree final as well as the petition for amendment of the p laint and consequentially the preliminary decree. 3. It is seen from the former petition that the substantive part of the prayer co ncerns with the correction relating to one plot number and Khata number in respect of the suit land. The latter petition for amendment of the plaint and consequentially, the preliminary de cree concerns with the change of area of the land in suit by way of reduction as also the chan ge of plot number and khata number.

The trial court in fact has committed error by taking up the petition for amen dment of the petition for making the preliminary decree final which should have been stood onl y after consideration of the petition for amendment of the plaint and preliminary decree being dependent upon the decision in the matter of amendment of the plaint and consequentially the preliminary decree. 4. Be that as it may, both the prayers are found to have been rejected holding th at such move at that stage is not permissible. In fact this ground is untenable in the eye of law.

The settled position of law is that in a suit for partition before drawal of t he final decree, there may be more than one preliminary decree and here also that is not the q uestion. The petitioner seeks correction in the plaint and preliminary decree as also in the p etition initiating the final decree proceeding pointing out inadvertent mistake in describing the property properly requiring rectification. So the court below ought to have in that situat ion considered the petitions by going to examine as to whether those changes are in fact going to bring some new property as the subject matter of the suit which has been preliminarily dec reed or not. So for that reason there should have been a comparison of the relevant documents vis--vis the description already there as also the description now sought to be changed. This exercise having not been done by the trial court the order as passed in my considered view has occasioned failure of justice and therefore is liable to be quashed. 5. For the aforesaid, the application stands allowed and the trial court is direc ted to reconsider and dispose of those petitions filed by this petitioner afresh in accordance with law keeping in view the above observations.

Dhani @D.Parida v. Bansidhar Parida

Case brief

What is this about?

What did the court decide?

Dhani @D.Parida v. Bansidhar Parida

Case brief

What is this about?

What did the court decide?

What the court decided

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