Allowed

Ramani R.Kara v. Kalpana Sahoo

Orissa HC21 Aug 2023WP(C)/1206/2013

Case brief

AI extract

What is this about?

The High Court allowed an amendment petition in a partition suit, setting aside the lower court's refusal. The amendment sought to clarify that property was bought from joint family funds in 1998 rather than personal funds in 1997. The court held the amendment was clarificatory and did not prejudice defendants, who could file additional statements.

What did the court decide?

Impugned order rejecting amendment set aside; petition for amendment allowed in toto; consolidated plaint to be filed within two weeks.

Ramani R.Kara Vs Kalpana Sahoo — Partition | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 1206 OF 2013

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Ramani Ramjan kara @ Kar and …. Petitioners another

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Mr. Bibekananda Bhuyan, Advocate

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-versus-

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…. Opp. Parties Mr. S.N. Biswal, Advocate on behalf of Mr. Dillip Ku. Pattanaik, Advocate

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Kalpana Sahoo and others

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

21.08.2023

This matter is taken up through hybrid mode.

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2 . Order dated 29^th November, 2012 (Annexure-5) passed by learned Civil Judge (Senior Division), Jajpur in C.S No.459 of 2009 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Petitioners under Order VI Rule 17 C.P.C. has been partly allowed.

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Mr. Bhuyan, learned counsel submits that the Plaintiffs are Petitioners in this writ petition. The suit has been filed for partition. At paragraph-4 of the plaint, it was inadvertently stated that ‘B’ Schedule property was purchased by the Plaintiffs from their own fund in the name of Defendant No.3, but, in fact, it was purchased from the joint family fund. He further submits that although ‘B’ Schedule property was purchased in the year, 1998, but the Plaintiffs have mistakenly stated that ‘B’ Schedule property was purchased in the year, 1997. In order to avoid any confusion, while adjudicating the suit, they sought for amendment of the aforesaid pleadings along with others. Although part of the proposed amendment was allowed, learned trial Court refused to amend the aforesaid

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Page 1 of 3

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// 2 //

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pleadings stating that it will change the very structure of the plaint. It is his submission that structure of the plaint will not be changed as the suit still remains to be a suit for partition. Since the Petitioners have inadvertently stated in the plaint that ‘B’ Schedule property was purchased in the name of Defendant No.3 from their own fund, but it was, in fact, purchased from their joint family nucleus, the same was sought to be amended. Hence, the impugned order under Annexure-5 is liable to be set aside to the extent of rejecting the prayer for amendment.

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Mr. Biswal, learned counsel appearing on behalf of Mr. Pattnaik, learned counsel for the Opposite Party No.1 submits that if the proposed amendment is allowed, the Defendants will be seriously prejudiced. The Defendant No.1 has taken a stand that he has purchased the property from Defendant Nos.2 and 3. Since, by way of amendment, the Plaintiffs-Petitioners seek to describe the property in question as the joint family property, they will be seriously prejudiced. Hence, he submits that learned trial Court has committed no error in dismissing the application for amendment to the aforesaid extent.

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At the outset, learned counsel for both the parties submit that trial of the suit has not yet commenced. 6. On perusal of the petition for amendment as well as the pleadings at paragraph-4 of the plaint, it appears that the Plaintiffs have taken a stand that they have purchased ‘B’ Schedule property from their own fund in the name of Defendant No.3. By way of amendment, the Plaintiffs sought to incorporate the pleadings that the property was purchased from joint family nucleus.

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Page 2 of 3

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// 3 //

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In view of the above, this Court does not feel that the structure of the suit will not be changed by allowing the amendment as sought for. It is only clarificatory in nature. Further, the Plaintiffs-Petitioners sought to amend the pleadings to the effect that the property was purchased in the year, 1998 instead of 1997. In view of the above, it cannot be said that the Defendants will be seriously prejudiced by virtue of the proposed amendment, if allowed. The Defendant No.1 has every right to file additional written statement, in the event amendment is allowed.

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Taking into consideration the rival contentions of learned counsel for the parties, this Court is of the considered opinion that by virtue of amendment, the Defendant No.1 will not be prejudiced. Further, amendment if allowed will assist the Court to adjudicate the suit for partition effectively.

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Accordingly, this Court sets aside the impugned order under Anenxure-5 to the extent of rejecting the petition for amendment and allows the petition for amendment in toto. Consolidated plaint shall be filed within a period of two weeks hence serving copy thereof on the Defendants. On receipt of the consolidated plaint, they are at liberty to file additional written statement, if so advised.

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Since the suit is of the year, 2009, learned trial Court shall make an endeavour to see that the suit is disposed of at an early date.

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The CMP is allowed to the aforesaid extent.

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Signature Not Verified

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Digitally Signed Urgent certified copy of this order be granted on proper Signed by: BIJAY KUMAR SAHOO Reason: Authentication application. Location: High Court of Orissa, C utta ck Date: 22-Aug-2023 10:51:30 (K.R. Mohapatra) bks Judge

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(K.R. Mohapatra) Judge

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Page 3 of 3

Ramani R.Kara v. Kalpana Sahoo

Case brief

What is this about?

What did the court decide?

Ramani R.Kara v. Kalpana Sahoo

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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