Allowed

Chitra Sahu v. Iswar Sahu

Orissa HC5 May 2023CMP/123/2023

Case brief

AI extract

What is this about?

The High Court of Orissa allowed an application for amendment of plaint under Order VI Rule 17 C.P.C. The court set aside the trial court's order rejecting the amendment, holding that the plea of limitation regarding a claim against a will is an issue of evidence to be adjudicated later, not a bar to amendment. The amendment was allowed subject to costs.

What did the court decide?

The impugned order rejecting the application under Order VI Rule 17 C.P.C. is set aside; the amendment sought for is allowed subject to payment of costs of Rs. 3,000/- to the Defendants.

Chitra Sahu Vs Iswar Sahu — Property and Title | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 123 OF 2023

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Chitra Sahu

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…. Petitioner

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Mr. Amit Prasad Bose, Advocate -versus-

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Iswar Sahu and others

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…. Opp. Parties Mr. Pabitra Kumar Nayak, Advocate (For Opp. Party Nos.1 and 2)

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CORAM:

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JUSTICE K.R. MOHAPATRA

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Order No.

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ORDER 05.05.2023 1. This matter is taken up through hybrid mode. 2. Order dated 19^th January, 2023 (Annexure-1) passed by learned Senior Civil Judge, Jharsuguda in C.S. No. 81 of 2016 is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner under Order VI Rule 17 C.P.C. has been rejected.

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Mr. Bose, learned counsel for the Petitioner submits that C.S. No. 81 of 2016 has been filed for partition and allotment of the share as well as for permanent injunction. Written statement was filed by Defendant No. 6 on 12^th September, 2022 stating that the entire MS Khata No.1100 in mouza Belpahar in the district of Jharsuguda was acquired by the Central Government in the year, 1989 for coal bearing area. Although averments with regard to acquisition of the land have been made in the plaint, but in view of the specific averments at para-11 of the written

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statement, the averments made in the plaint require amendment for clarification. Further, at para-6 of the plaint, although the Plaintiff had stated that registered Will dated 3^rd February, 1998 was executed fraudulently, but no prayer for its declaration to be null and void and not binding on the Plaintiff could be made. Since trial of the suit has not yet commenced, an application under Order VI Rule 17 C.P.C. was filed for amendment of the plaint as proposed in the schedule of the said petition. The said application was rejected observing that it will change the nature and character of the suit and the prayer proposed to be incorporated is barred by limitation.

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3.1 It is his submission that execution of the registered Will in question was not within the knowledge of the Plaintiff as specifically stated in para-6 of the plaint. Further, the question of limitation for claiming such relief can be considered by framing an issue to that effect. The proposed amendment with regard to acquisition of the land is only explanatory in nature and there is no legal impediment for incorporating such amendment, more particularly when the trial of the suit has not yet commenced. He, therefore, submits that learned trial Court without applying its judicial mind has passed the impugned order. Hence, the same is liable to be set aside and the proposed amendment may be allowed.

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Mr. Nayak, learned counsel for Opposite Party Nos.1 and 2 vehemently objects to the same and contends that registered Will was executed in the year, 1998 and the suit was filed in the year, 2016. Thus, the prayer sought to be incorporated is barred

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by limitation as Article 59 of the Limitation Act provides that it should be challenged within a period of three years. In support of his submission, he relied upon the case law in Sadananda Mohanty –v- Urmila Das and others , reported in 2013 (I) ILRCUT-105, wherein this Court has also held that relief barred by limitation cannot be brought in by way of amendment. It is his submission that no fraud has been committed by executing the Will. Hari Sahu, the executant of the Will died on 6^th April, 1998. Thus, the ground on which the Plaintiff-Petitioner claimed the Will to be declared null and void, is not sustainable. He further submits that the Plaintiff-Petitioner had knowledge about acquisition of the land. Thus, the prayer sought for to incorporate the pleadings with regard to acquisition of the land was within his knowledge and should not be allowed at the belated stage. He, therefore, submits that learned trial Court has committed no error in dismissing the application under Order VI Rule 17 C.P.C.

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Considering the rival contentions of learned counsel for the parties and on perusal of the record, it appears that at para-6 of the plaint, the Plaintiff-Petitioner has categorically stated that registered Will in question was executed on 3^rd February, 1998 although the executant had died on 5^th July, 1997, the same was not within her knowledge. The plea with regard to limitation can be adjudicated by framing an issue. In the case of Sadananda Mohanty (supra), this Court has also held that limitation will be computed from the date of knowledge. Thus, it is a matter of evidence, which should not be adjudicated at the stage of

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consideration of an application for amendment. It appears that inadvertently the prayer with regard to declaration of the Will was not taken in the plaint which is sought to be incorporated by way of amendment. Further, the plea with regard to acquisition of the land is already available in the plaint itself. But, in view of the written statement filed by Defendant No.6, the same requires further clarification for just adjudication of the suit. Hence, the amendment sought for should have been allowed.

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Taking into consideration the discussions made above, this Court is of the considered opinion that learned trial Court has committed an error in dismissing the application under Order VI Rule 17 C.P.C.. Accordingly, the impugned order passed by learned trial Court under Annexure-1 rejecting the application under Order VI Rule 17 C.P.C. is set aside and the amendment sought for is allowed subject to payment of cost of Rs.3,000/(Rupees three thousand) to the Defendants, who objected to the petition under Order VI Rule 17 C.P.C., before learned trial Court. Consolidated plaint shall be filed and cost shall be deposited within a period of fifteen days hence and the same shall be disbursed in favour of contesting Defendants by learned trial Court. The Defendants are at liberty to file additional written statement to the consolidated plaint, if so advised.

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Digitally signed BIJAY by BIJAY 7. With the aforesaid observation and direction, the CMP is KUMAR SAHOO Date: disposed of. KUMAR 2023.05.08 10:41:35 Urgent certified copy of this order be granted on proper SAHOO +05'30' application.

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With the aforesaid observation and direction, the CMP is disposed of.

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(K.R. Mohapatra) Judge

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bks

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Chitra Sahu v. Iswar Sahu

Case brief

What is this about?

What did the court decide?

Chitra Sahu v. Iswar Sahu

Case brief

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