Orissa High Court
Pramod Kumar Prusty And Others vs Aina Prusty Rep. B Y Her Legal Heirs And ... on 5 September, 2014
Equivalent citations: 2015 AIR CC 36 (ORI), (2014) 144 ALLINDCAS 630 (ORI), (2014) 2 CLR 928 (ORI), (2015) 119 CUT LT 56, (2015) 1 CURCC 592, (2015) 2 CIVLJ 269, (2015) 1 CURCC 455(1), (2014) 2 ORISSA LR 1035
Author: S.Panda
Bench: S.Panda
ORISSA HIGH COURT: CUTTACK
W.P.(C) NO.9893 OF 2010
(In the matter of an application under Articles 226 and 227 of the Constitution
of India)
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Pramod Kumar Prusty and others ......... Petitioners
-Vs-
Aina Prusty (since dead) represented
by her legal heirs and others ......... Opp. Parties
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For Petitioners : M/s. Sangram Nayak, K.B.Kar
and S.Pattanayak.
For Opp. Party Nos.1(a) to (f) : M/s Pradipta Kumar Mohanty,
D.N.Mohapatra, J.Mohanty,
P.K.Nayak and S.N.Dash
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PRESENT:
THE HONOURABLE KUMARI JUSTICE S.PANDA
Date of Judgment : 05.09.2014
S.Panda, J.This Writ Petition has been filed by the petitioners challenging the order dated 11.5.2010 passed by the learned Addl. Civil Judge (Senior Division), Puri in C.S No.92/136 of 2010/2009 allowing the application filed under Order 6, Rule 17 of C.P.C for amendment of the plaint.
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2. The facts leading to the present case are that opposite party nos.1 to 8 as plaintiffs filed C.S No.92/136 of 2010/2009 before the learned Civil Judge (Senior Division), Puri for partition and permanent injunction in respect of the disputed land described in Schedules A and B of the plaint. The plaintiffs in the plaint inter alia alleged that they are in possession of the land for more than the prescribed period as such they have perfected title thereto though the Record of Rights stand in the name of one Janha Bewa, the mother of defendant no.1, who was allotted with a share in a family partition in the year 1930. The plaintiffs also challenged the Sale Deed executed by defendant no.1 in favour of other defendants.
2.1 After receiving notice, the petitioners, who are defendant nos.1 to 8 appeared in the suit and filed their written statement traversing the allegations made by the plaintiffs. They have specifically taken a stand that in the year 1933 a family partition was made and the properties were partition between Banchha Prusty, Niladri Prusty and Dama Prusty, who were the sons of Kanhei Prusty. Bancha died leaving Mohan Prusty, the adopted father of defendant no.1 and husband of Janha Bewa. Niladri, Dama and Mohan were allotted with Ac.4.60, Ac.4.568 and Ac.4.522 decimals respectively and they were in peaceful possession over the said land since then. It was further stated that Dama and Niladri died issueless. The land allotted to them devolved on Mohan as their successor and Mohan being the exclusive owner was in possession of the properties. After death of Mohan, his widow Janha and defendant no.1 were in possession of the suit properties. After death of Janha, defendant no.1 continued to possess the suit properties. The plaintiffs are successor-in-interest of Satyabadi 3 Prusty and they were in separate possession of the land. It is also stated that defendant no.1 and Janha have filed O.S No.116/72 of 1972/1966 against the ancestors of the plaintiffs and others for partition, which was dismissed in view of the earlier partition of the year 1933. Thereafter Fist Appeal No.115 of 1973 was preferred before this Court, which was also dismissed on 27.11.1984 confirming the judgment and decree passed by the trial court. In the said suit the trial court vide its judgment dated 24.2.1973 at paragraph-7 specifically recorded a finding that the witnesses have deposed in support of such adoption but the contesting defendants in their written statement have mentioned that present plaintiff no.2 is the adopted son of Mohan Prusty. So necessarily it is held that said adoption is true and plaintiff no.2 is the son of Mohan Prusty on adoption. 2.2 While matter stood thus, the present plaintiffs filed I.A No.252 of 2009 under Order 39, Rules 1 and 2 of C.P.C for ad interim injunction stating that they have perfected title to the suit lands through adverse possession against defendant no.1 and his mother Janha Bewa. The petitioners also filed an application under Order 39, Rules 1 and 2 of C.P.C, which was registered as I.A No.254 of 2009. The trial court by common order dated 30.11.2009 while allowing the application for injunction filed by the petitioners rejected the application of the plaintiffs. Being aggrieved the plaintiffs preferred F.A.O Nos.107 and 108 of 2009 before the learned District Judge, Puri. The lower Appellate Court directed the parties to maintain status quo over the suit land till disposal of the suit. However, the said order of the lower Appellate Court was challenged before this Court. In course of hearing, the parties have admitted about status quo order over the suit 4 land. Accordingly, the Writ Petition was disposed of directing the parties to maintain status quo.
2.3 Thereafter the plaintiffs filed an application under Order 6, Rule 17 of C.P.C seeking leave of the court to amend the plaint. In the proposed amendment the plaintiffs tried to withdraw the admission made in the plaint, which are as follows:-
"i) In the cause title after description of defendant no.1 and after the word sixty years the words "falsely alleging and styling himself as the son of late Mohan Prusty' be deleted and the words 'but he is the son of Chakradhar Sahoo' be inserted.
ii) In the 1st line of paragraph-1 the word 'defendant no.1' be deleted.
iii) In the third line paragraph-4 the word 'the defendant no.1 and' be deleted.
iv) In the second line of paragraph-2 the word 'his' be deleted and its place the word 'alleged' be inserted.
v) In the second line of paragraph-5 the word 'his late adopted' be deleted and the word 'alleged' be inserted.
vi) In the tenth line of paragraph-5 after the word was 'not' be inserted and after last sentence of paragraph-2 following be inserted:
" It is further submitted in the earlier partition suit there was no such issue about the alleged adoption of the defendant no.1. Moreover when the suit has been dismissed in the appeal, so the present plaintiffs had no occasion to challenge any such observation made in the earlier suit. When the suit is dismissed any observation made therein has no legal effect. The defendant no.1 has not take any initiative to assert his son-ship during the time of his alleged mother Janha before the Consolidation Authority. In the earlier suit the alleged deed of adoption was referred as Ext.1. In that alleged document no day and date of adoption was given no consent of natural parents of adoptee has been obtained nor the minor was 5 properly represented in the alleged adoption deed. In the said adoption deed Mohan has shown as son of Niladri. In fact Mohan is the son of Banchhanidhi. So the person who alleged to have been executed the adoption deed No.61 dated 02.9.1997 is not the real person. When line of succession is deviated the onus is heavily on them to prove the status of defendant no.1 as adopted son of Mohan. When his name is not reflected in Consolidation R.O.R nor even rent has been given by him nor he has been ever staying in the suit village nor his name finds place in voters' list, so it implies that defendant no.1 never be treated as son of Mohan at any point of time.
vii) In the second of paragraph-3 at page-5 the words 'with his mother' be deleted and in the sixth line of the same para the word 'before' be deleted and its place the word 'and never' be inserted. In the ninth and tenth line the word 'and adoptive mother' be deleted. The last sentence of paragraph-3 be deleted and its place 'Janha Bewa died during the middle of the year 1984' be inserted.
viii) In the 22nd line of paragraph-5 at page-8 after the word his 'alleged' be inserted. In the last line of page-8 of plaint after the word 'his' the word 'alleged' be inserted. In the 6th line of page-8 after Janha Bewa 'the deceased mother of defendant no.1' be deleted. In the same para at 11th line of page-9 the words 'both mother and son' be deleted and in its place 'defendant no.1 and Janha' be inserted.
ix) After paragraph-5 sub-para 5 (a) be inserted to the plaint:
"5 (a). That the alleged transaction is grossly violated the provision of Consolidation Act by creating fragment and moreover in the alleged sale deed the specification of share and its identity are not given. As residential house of the plaintiffs being alleged to have been sold Section 4 of Partition Act and Section 44 of T.P Act is a bar and the stranger purchasers cannot be a joint tenant with the plaintiffs".
x) In the second line of paragraph-6 and in the seventh and eighth line of the same paragraph the words 'his late mother' be deleted and in 6 its place 'Janha' be inserted. In the 11th and 12th line of same para the word 'defendant no.1' be deleted and in its place 'Mohan' be inserted.
xi) In the prayer after end of (a) the following be inserted:
"Further court may declare that the defendant no.1 is not the duly adopted son of Mohan and after death of Janha the Schedules A and B suit property should devolved on plaintiffs and defendant nos.9, 10 and 11."
2.4 The defendants filed their objection to the said amendment application inter alia taking a stand that the plaintiffs with mala fide intention have filed the application for amendment and are trying to withdraw their admission already made in the plaint by way of proposed amendment which need be rejected. When the plaintiffs filed the suit admitting the fact that defendant no.1 is the adopted son of Mohan Prusty, at the subsequent stage such admission of the plaintiffs should not be withdrawn by way of amendment and with mala fide intention, the plaintiffs now introducing a joint possession of defendant purchasers after rejection of their application under Order 39, Rules 1 and 2 of C.P.C for injunction by the trial court.
3. Learned counsel appearing for the petitioners submitted that in view of the objections raised by the defendants the court below should have dismissed the application for amendment as the intention of the plaintiffs is mala fide and telltale on the basis of proposed amendment the plaintiffs want to withdraw the admissions made in the plaint, which is not permissible. In support of his contention he has relied on the decisions reported in (2008) 7 SCC 85, AIR 1998 SC 618 and 2009 (II) OLR (SC) 815.
73.1 In the case of Gautam Sarup Vs. Leela Jetly and others reported in (2008) 7 SCC 85 the Apex Court held that an admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore. It is one thing to say that without resiling from an admission, it would be permissible to explain under what circumstances the same had been made or it was made under a mistake belief or to clarify one's stand inter alia in regard to the extent or effect of such admission, but it is another thing to say that a person can be permitted to totally resile there from. A categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.
3.2 In the case of Heeralal Vs. Kalyan Mal and others reported in AIR 1998 SC 618 the Apex Court held that subsequently seeking amendment of written statement withdrawing earlier admission, if allowed would displace plaintiff's case and his right to get preliminary partition decree, therefore, amendment is not permissible.
3.3 The Apex Court in the case of Revajeetu Builders and Developers Vs. Narayanaswamy and sons and others reported in 2009 (II) OLR (SC) 815 held that the Courts have very wide discretion in the matter of amendment of pleadings but Court's powers must be exercised judiciously and with great care. The decision on an application made under Order 6, Rule 17 of C.P.C is a very 8 serious judicial exercise and the said exercise should never be undertaken in a casual manner. While deciding applications for amendments the Courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the Court's discretion in grant or refusal of the amendment. The other important condition which should govern the discretion of the Court is the potentiality of prejudice or injustice which is likely to be caused to the other side. Ordinarily, if the other side is compensated by costs, then there is no injustice but in practice hardly any court grants actual costs to the opposite side.
4. Learned counsel appearing for opposite parties submitted that the amendment is necessary as the defendant no.1 was not residing at the suit schedule Mouza and he was residing at his business place at Sambalpur. The third party purchaser claim joint possession, therefore, the application for amendment of the plaint was filed for effective adjudication of the dispute between the parties. He further submitted that the trial court has rightly allowed the application, which need not be interfered with. In support of his contention he has relied on the decisions reported in AIR 2006 SC 2832, 2006 (II) OLR (SC) 561, AIR 2008 SC 1960 and AIR 1983 SC 462.
4.1 The Apex Court in the case of Baldev Singh and others Vs. Manohar Singh and another reported in AIR 2006 SC 2832 held that 9 amendment of a plaint and amendment of a written statement are not necessarily governed by exactly the same principle. It is true that some general principles are certainly common to both, but the rules that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement. Adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action. Accordingly, in the case of amendment of written statement, the Courts are inclined to be more liberal in allowing amendment of the written statement than of plaint and question of prejudice is less likely to operate with same rigour in the former than in the latter case.
4.2 In the case of Rajesh Kumar Agrawal Vs. K.K.Modh and others reported in 2006 (II) OLR (SC) 561 the Apex Court held that the correctness or falsity of the case in the amendment should not be examined or any findings in this regard also should not be recorded while considering the application for amendment since the same pertains to the merit and can be considered at the time of considering the suit. The amendment should be liberally allowed without going into the real controversies between the parties.
4.3 In the case of Puran Ram Vs. Bhaguram and another reported in AIR 2008 SC 1960 the Apex Court held that even the amendment for rectification of mistake in the plaint as well as in contract can be allowed and to grant such relief in allowing the amendment is totally left with the discretion of the court which may not be interfered with by the High Court in exercise of supervisory jurisdiction 10 under Article 227 of the Constitution of India unless the trial court is found to have exercised without jurisdiction or perverse or arbitrary. 4.4 In the case of Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and another reported in AIR 1983 SC 462 the Apex Court held that the trial court granting the application for amendment, was satisfied that in order to effectively adjudicate upon the dispute between the parties, amendment of the pleading was necessary, and therefore, the High Court ought not to have interfered in its revisional jurisdiction.
5. After going through the pleadings of the parties and the decisions cited above, it appears that the plaintiffs filed the suit for partition and permanent injunction. From the inception the plaintiffs have described that defendant no.1 is the adopted son of Mohan and Janha. By way of proposed amendment the plaintiffs want to withdraw the admission already made in the plaint and to introduce certain facts regarding joint possession of the residential property. Law is well settled that while considering the application for amendment the court has to see whether the amendment is necessary to decide the real controversy, whether no prejudice or injustice caused to other party and whether the application for amendment is bona fide or mala fide. As general rule the court should decline amendment if admission made in the pleadings particularly in the plaint sought to be omitted or get rid off as held by the Apex Court in the case of Usha Balashaheb Swami and others Vs. Kiran Appaso Swami and others reported in 2007 (II) OLR (SC) 169. The Apex Court further held that a prayer for amendment of the plaint and prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot 11 be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counter part in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. Further the Apex Court in the case of Heeralal Vs. Kalyan Mal and others (supra) held that the earlier admission of the defendants cannot be allowed to be withdrawn though the amendment of the written statement is to be considered liberally. In the case of Gautam Sarup Vs. Leela Jetly and others (supra) the Apex Court reiterating the settled position of law rejected the amendment of the written statement as the defendants resiling from the admission made in the original written statement. In the case of Baldev Singh and others Vs. Manohar Singh and another (supra) the Apex Court while considering the amendment of the written statement held that the court should be liberal in granting prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to other side. There is no dispute regarding the said settled position of law. The application for amendment can be entertained for rectification of mistake committed by the parties while conducting the case as clarified in the decision Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and another (supra) that an admission made by the party may be withdrawn or may be explained away in the facts and circumstances if it not cause injustice to the other side.
6. In the present case as discussed above, the court below erred in law in allowing the application for amendment of the plaint filed by the plaintiff on the 12 observation that the proposed amendment is very formal in nature and it will not change the nature and character of the suit in any manner ignoring the fact that the status of defendant no.1, who was adopted by the plaintiff sought to be withdrawn, which is not permissible. The application of the plaintiffs for grant of temporary injunction was rejected by the court below hence, the amendment for joint possession is liable to be rejected.
7. In view of the discussions made above, this Court sets aside the impugned order dated 11.5.2010 passed by the learned Addl. Civil Judge (Senior Division), Puri in C.S No.92/136 of 2010/2009.
The Writ Petition is allowed. The interim order dated 23.6.2010 passed by this Court in Misc. Case No.9029 of 2010 stands vacated.
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S.Panda, J.
Orissa High Court, Cuttack 5th September, 2014/ B.K.Panda