Judgment:
HIGH COURT OF ORISSA : CUTTACK O.J.C. No.1795 of 1992 In the matter of an application under Articles 226 & 227 of the Constitution of India. -------------Usharani Rout and another ……. Petitioners ……. Opp. Parties -VersusDistrict Judge, Cuttack & Others For Petitioners : M/s. S.K. Nayak-2, S.N. Mishra & G.P. Mohapatra. For Opp. Party Nos.1 & 2: Additional Standing Counsel. For Opp. Party Nos.3(a): M/s. B. Ojha, Rajat Mishra & to 3(d) Rajesh Mishra. For Opp. Party No.4 : M/s. C.R. Nanda & Biswajit Mohanty-3. --------------- P R E S E N T: THE HON’BLE MR. JUSTICE INDRAJIT MAHANTY. Date of hearing:
11. 04.2008 I. Mahanty, J.Date of Judgment:
12. 07.2012 In this writ application, the petitioners herein have sought to challenge the order dated 20th February, 1992 passed in Civil Revision No.38 of 1992 by the learned District Judge, Cuttack in allowing the said revision and consequently allowing the 2 application for amendment of written statement sought for by defendant No.1 (Opposite party No.3 herein since dead and substituted) and reversed the order of rejection dated 30.01.1992 passed by the learned Second Additional Sub-Judge, Cuttack in Title Suit No.43 of 1986.
2. Shorn of unnecessary detail, it would suffice to note here that the writ-petitioners as plaintiffs have filed Title Suit No.43 of 1986 before the learned Second Additional Sub-Judge, Cuttack for declaration of right, title and interest over the suit land and for eviction of the defendant No.1 from the suit property along with a prayer for permanent injunction.
3. It appears from the record that an application for amendment of written statement under Order-6, Rule-17 read with Section 151 C.P.C. came to be filed by defendant No.1, inter alia, to bring into his pleadings of fact that an earlier suit had been filed by one Banamali Dalbeura, who was purchased the disputed land from the common ancestor of the defendants on 8.12.42 and, thereafter, sold the same to one Choudhury Dibyasingh Das. It appears that the said Banamali Dalbeura and Choudhury Dibyasingh Das had initiated Title Suit No.54 of 1958 in the court of Munsif First Court, Cuttack for declaration of their title, permanent injunction, confirmation and in the alternative for 3 recovery of possession against Raghu Rout and others. The said suit was decreed on 14.04.60 and the decree holder initiated Execution Case No.85 of 1971 in the court of the Munsif First Court, Cuttack and in due course, obtained possession through court on 15.07.73.
4. objected The application for amendment of written statement was to by the plaintiffs (petitioners herein). The said application came to be rejected by the learned Second Additional Sub-Judge, Cuttack by order dated 30.01.92, inter alia, on the ground that, if such amendment was allowed, the plaintiffs would be irretrievably prejudiced by being denied the opportunity of extracting admission from the defendants. Challenge has been made to the said order of the learned Second Additional Sub-Judge, Cuttack before the learned District Judge, Cuttack in Civil Revision No.38 of 1992. The learned District Judge by his order dated 20.02.1992 came to reverse the conclusion arrived at by the learned Second Additional Sub-Judge, Cuttack and came to hold that, as a general rule, leave to amend is granted so as to enable the real question in issue between the parties to be raised on the pleadings where the amendment will occasion no injury to the opposite party, except such, can be sufficiently compensated for by cost or other terms to be imposed 4 by the order. The learned District Judge further concluded that in the case at hand, the proposed amendment is by way of only elucidation of the facts stated earlier by the defendants as regards to the rights of the plaintiffs, if they had any for the suit property. The learned District Judge further observed that even though the plaintiff’s evidence was over, by allowing the amendment, the same shall not cause any prejudice to the rights of the plaintiffs, since they would also get an opportunity to amend their pleadings, if they so desire.
5. Learned counsel appearing for the petitioners, vehemently urged that the nature and character of the suit and the admissions made by the defendants and the conclusion thereof are sought to be delayed by way of the amendment and the same would cause serious prejudice to the case of the plaintiff-petitioners.
6. Although no counsel was present at the time of hearing of the present case on behalf of the opposite party Nos.3 & 4defendants, I have perused the counter affidavit filed on behalf of opposite party Nos.3 & 4. The amendments as sought for relate to paragraph-8 of the written statement. The defendants No.3 & 4 have relied upon a judgment rendered by Hon’ble Justice G.K. Mishra, J.(as his Lordship the then was) in the case of Aintha 5 Swain v. Nilakantha Biswal, A.I.R. 1969, Orissa, 267 which is quoted hereunder: “It can hardly be denied that the defendant was not vigilant not diligent. But the amendment can not be rejected in all cases where there is a lack of vigilance or diligence on the part of the defendant. The crucial test is whether what the defendant avers not is true or not.”
7. On consideration of the submissions made by the learned counsel for the petitioners and on perusing the counter affidavit filed by the opposite party Nos.3 & 4 and the impugned order, I am of the considered view that the learned District Judge, Cuttack has correctly dealt with the issues involved and has applied the appropriate test while considering the application for amendment i.e. whether the averments made by the defendants in the counter affidavit not are true or not. In my considered view, this question has been correctly answered by the learned District Judge, Cuttack in favour of opposite party No.3. Inasmuch as if a decree of competent court exists and if the plaintiff has not brought the said fact to the notice of the court, the same could possibly lead to a conflict in decree caused by suppression of material facts by the plaintiff. Therefore, I am of the considered view that the order dated 20.02.1992 passed by the learned District, Judge, Cuttack in Civil Revision No.38 of 1992 allowing the amendment is clearly in order in the facts and 6 circumstances of the case and there is no lawful justification in entertaining any challenge to the same.
8. Accordingly, I am of the considered view that the present writ application merits no further consideration and the same is dismissed, but in the circumstances without any cost. ……………………… I.Mahanty, J.ORISSA HIGH COURT : CUTTACK 12 h July, 2102 /PKP