Orissa High Court
Unknown vs 5 on 19 November, 2020
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
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CMP NO. 1275 OF 2017
05 19.11.2020 Due to outbreak of COVID-19, this matter is
taken up through Video Conferencing.
2. Heard Mr. Bibekananda Bhuyan, learned
counsel for the petitioner and Mr. Soumya Mishra,
learned counsel for the opp. parties.
3. This CMP has been filed assailing the order
dated 14.09.2017 (Annexure-5) passed by learned Civil
Judge (Senior Division), Jajpur in C.S. No. 189 of 2007,
whereby he rejected the petition filed under Order 6
Rule 17 C.P.C. by the plaintiff-petitioner refusing to
amend the plaint.
4. Mr. Bhuyan, learned counsel for the petitioner
submits that the petitioner is the plaintiff and the opp.
parties are defendants in C.S. No. 189 of 2007, which
has been filed by the plaintiff with the following prayer.
1. Let it be declared that M.S. R.O.R. No. 771,
Plot No. 1654 of mouza Mugapal recorded
in the name of the defendants is wrong,
illegal and void.
2. Let the possession of the plaintiff be confirmed
over the suit land.
3. Let the defendants be permanently injected
from entering upon the suit land.
4. Let it be declared that the defendants
had/have no manner of right, title, interest and
possession over the suit land.
5. Let the cost of the suit be decreed in favour of
the plaintiff.
6. Let any other relief/reliefs be passed in favour
of the plaintiff."
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5. The suit schedule land was purchased by the
plaintiff vide registered sale deed no. 2773 dated
09.07.1982 from one Baidyanath Sahoo, who had
purchased the same from one Suka Bewa, wife of
Siddha Sahoo. After purchase, the plaintiff mutated the
suit land in his favour in Mutation Case No. 422 of
1982. When the matter stood thus, the defendants
created disturbance in the peaceful possession of the
plaintiff and threatened him of dire consequences
disclosing that the suit land has been recorded in their
favour in the M.S. R.O.R. Hence, C.S. No. 189 of 2007
has been filed by the plaintiff for the aforesaid relief.
The defendants filed their respective written statements
denying the plaint allegations. Defendant no. 5 by filing
a separate written statement stated that he has
purchased Ac.0.04 decimals out of the suit land from
the father of the defendant nos. 1 to 4, namely,
Banamali Sahu. The vendor of the plaintiff purchased
the land during pendency of the suit for partition in T.S.
No. 47 of 1980 filed by said Banamali Sahu, which was
decreed ex parte. During pendency of Title Suit No. 47
of 1980, the suit land was sold to the plaintiff. As such,
he is a lis pendence purchaser and the decree passed in
T.S. No. 47 of 1980 is binding on him.
6. The plaintiff on receipt of the written statement
filed a petition under Order 6 Rule 17 C.P.C. seeking for
the following amendment in the plaint:
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"That after the Para No.2 the following lines may
be read as Para No.2A. That the order passed in
CS No. 47/1980 is illegal and void as the same is
not in consonance to law. The CS Plot No. 1789,
1788 were never joint family ancestral homestead
of the Defendant Nos.1 to 3. CS Plot No. 1789 was
'BAUNSA BARI' & CS Plot No. 1788 was 'BIOLI' in
'KISAMA'. The learned Sub-Judge the then being
mislead about the norms of law has passed an
illegal order U/S 04 of Partition Act, which is not
tenable in the eye of law. So the order passed in
the aforesaid CS No. 47/1980 dt. 12.10.1982 will
not have any effect over the title of the vender of
the petitioner. So also the RSD executed by the
learned Sub-Judge, Jajpur in favour of the
Defendant No.1 vide RSD No. 587 dt. 25.03.1998 is
void as it is against the norm of law. As per law a
void document never needs declaration, when the
same is void from its very inception. When the
aforesaid order dt. 12.10.1982 is not in accordance
to law and thereby void from its very inception the
subsequent documents are invalid and inoperative.
That in suit land 'Corresponding to Hal Hata No.
771 Plot No. 1654 A.0.17 decimals' be corrected as
'Correspodning to Hal Khata NO. 771 Plot No. 1652
A.0.44 decimals & 1654 A.0.17 decimals."
7. The defendant nos. 1, 2, 5 and 6 filed objection
to the said amendment petition stating that the plaintiff
being the lis pendence purchaser is bound by the
decree passed in T.S. No. 47 of 1980 in view of the
provisions under Section 52 of the Transfer of Property
Act. The decree passed in T.S. No. 47 of 1980 was
never challenged in any court of law and reached its
finality. The plaintiff had earlier knowledge of the said
suit as he had filed a revision case before the
Commissioner of Settlement for correction of the R.O.R.
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in his name. Thus, he was well aware of the decree
passed in T.S. No. 47 of 1980. The proposed
amendment will change the nature and character of the
suit land and it will not only enlarge the scope of the
suit but also result in delay in disposal of the suit. As
such, the proposed amendment should not be allowed.
8. Learned Civil Judge considering the rival
contentions of the parties and accepting the objections
raised by the defendants dismissed the amendment
petition filed under Order 6 Rule 17 C.P.C. vide order
under Annexure-6. Hence, this CMP has been filed.
9. Mr. Bhuyan, learned counsel for the petitioner
argued that the proposed amendment is essential for
just adjudication of the case. Learned Civil Judge while
adjudicating the petition filed under Order 6 Rule 17
C.P.C. delved into the merits of the proposed
amendment, which is not permissible in the eyes of
law. The merit of the proposed amendment can only be
considered at the time of the hearing of the civil suit by
leading evidence to that effect, if the proposed
amendment is allowed. Likewise, learned Civil Judge
accepted the contention raised by the defendants to the
effect that the plaintiff had knowledge of the decree
passed in T.S. No. 47 of 1980. Such a presumption is
without any basis, as there is no material available on
record in support of the same. Unless the proposed
amendment is allowed, there will be multiplicity of
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litigation and the plaintiff will be seriously prejudiced.
He further contended that the plaintiff being the lis
pendence purchaser has a right to challenge the decree
passed in T.S. No. 47 of 1980 and he cannot go
remediless. In such view of the matter, there is no
difficulty in allowing the amendment petition under
Order 6 Rule 17 C.P.C., the merits of which can be
considered at the time of hearing of the suit by
permitting the defendants to file additional written
statement to that effect. The trial of the suit has not
commenced as yet. He, therefore, prays for setting
aside the impugned order and to allow the proposed
amendment of the plaint.
10. Mr. Mishra, learned counsel for the opposite
parties, on the other hand, submits that the plaintiff
himself had filed a revision case before the
Commissioner, Settlement and Consolidation, Odisha,
Cuttack assailing the correctness of the entry made in
the R.O.R in respect of the suit land, which itself
establishes that he had knowledge about the decree
passed in T.S. No. 47 of 1980. He further contended
that the plaintiff being a lis pendence purchaser is
bound by the decree passed in T.S. No. 47 of 1980 in
view of the provisions of Section 52 of the Transfer of
Property Act. As per the provisions of Section 55 of the
Transfer of Property Act, it is presumed that the vender
of the plaintiff had disclosed the status of the land at
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the time of alienation of the same. It is his submission
that the plaintiff having knowledge of the decree did not
challenge the same and waited till filing of the written
statement by the defendant no.5 to proceed for
amendment of the plaint. Such a dilatory tactics
adopted by the plaintiff should not be encouraged by
entertaining the petition for amendment. It is a year
old suit and if the amendment sought for is allowed, it
will further delay the matter and cause serious
prejudice to the defendants. Hence, learned Civil Judge
has committed no error in rejecting the petition under
Order 6 Rule 17 C.P.C.
11. Heard learned counsel for the parties at length
and perused the materials available on record.
12. The merit of the proposed amendment can only
be gone into by the Court by assessing the evidence to
be adduced at the time of trial of the suit. The Court
has only to see that the proposed amendment is
necessary for just adjudication of the case to pass an
effective decree and it is bona fide. The objection raised
by the defendants on the merit of the proposed
amendment can only be gone into by leading evidence
to that effect. That cannot be scrutinized at the stage of
consideration of a petition under Order 6 Rule 17
C.P.C.
13. It further appears that there is no dispute to the
fact that T.S. No. 47 of 1980 was decreed ex parte.
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There is also no doubt to the fact that the plaintiff is a
lis pendence purchaser, but that itself will not preclude
him from challenging the said decree when it comes to
his knowledge. There is no material on record to come
to a conclusion that the plaintiff had, in fact,
knowledge of such decree earlier, save and except the
objection raised by the defendants in their objection to
the petition under Order 6 Rule 17 C.P.C. to the effect
that the plaintiff had filed revision before the
Commissioner, Settlement challenging the validity of
M.S. R.O.R. True it is that the plaintiff had knowledge
of publication of M.S. R.O.R., which is challenged in
the suit. But, there is no material to show that he
had knowledge of the decree passed in T.S. No. 47 of
1980. The objection with regard to previous knowledge,
as aforesaid, can only be verified at the time of hearing
of the suit, if the proposed amendment is allowed and
such an objection is raised by filing additional written
statement.
When the plaintiff has a right to challenge the
decree passed in T.S. No. 47 of 1980 by filing a separate
suit, there is no difficulty in allowing him to seek for
such a relief by way of amendment in the present suit,
i.e. C.S. No. 189 of 2007, which appears to be bona fide.
There is no dispute to the fact that issues have
not yet been framed and trial of the suit has not been
commenced. Thus, interest of justice will be best served
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in allowing the proposed amendment sought for by the
plaintiff.
14. Accordingly, the impugned order under
Annexure-5 is set aside and the proposed amendment
as sought for by the plaintiff in the petition under Order
6 Rule 17 C.P.C. is allowed subject to payment of cost
of Rs.5000/- (Rupees five thousand) to the defendants
before the next date of posting of the suit. Consolidated
plaint shall be filed by the plaintiff within a period of
fifteen days hence and the defendants will be at liberty
to file additional written statement to the amended
plaint. Since the suit is of the year, 2007, learned Civil
Judge shall do well to proceed with the suit
expeditiously. Parties are directed to co-operate with
the trial court for early disposal of the suit.
15. With the aforesaid observation and direction, the
CMP is disposed of.
16. Authenticated copy of this order downloaded
from the website of this Court shall be treated at par
with certified copy in the manner prescribed in this
Court's Notice No.4587 dated 25.03.2020.
.................................
K.R. Mohapatra, J.
bks 9 In view of the order passed in CMP No. 1274 of 2017, the proposed amendment as sought for by the petitioner in the petition under Order 6 Rule 17 C.P.C. shall be allowed subject to payment of cost of Rs.1000/- (Rupees one thousand) to be paid to the opposite parties before next date of posting of the suit.