Orissa High Court
Unknown vs 7 07.12.2020 Due To Outbreak Of Covid-19 on 7 December, 2020
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
CMP NO. 1415 OF 2018
07 07.12.2020 Due to outbreak of COVID-19, this matter is
taken up through Video Conferencing.
2. Heard Mr. N.K. Sahu, learned counsel for the
petitioner and Mr. A.C. Mohapatra, learned counsel for
the opposite party no.1.
3. This CMP has been filed assailing the order dated
20.08.2018 (Annexure-5) passed by learned Civil Judge
(Senior Division), Jajpur in C.S. No. 153 of 2004,
whereby he rejected an application filed by the plaintiff-
petitioner under Order 6 Rule 17 C.P.C. for amendment
of the plaint.
4. Mr. Sahu, learned counsel for the petitioner
narrating the facts of the case submits that the
defendant no.1-opp. party no.1, who is the grandson-in-
law of the original plaintiff, in the garb of execution of
Power of Attorney by the original plaintiff in his favour
managed to execute a sale deed in his favour by
practising fraud. The original plaintiff was a rustic,
pardanashin and illiterate lady and had immense faith
on the defendant no.1, who was visiting the plaintiff and
taking care. Taking advantage of the fiduciary
relationship with the original plaintiff, the defendant
no.1-opp. party no.1 had committed fraud. Hence, C.S.
No. 153 of 2004 has been filed for declaring the sale deed
dated 15.01.1991 and registered sale deed dated
12.05.2004 as illegal, invalid and fraudulent along with
other reliefs. During pendency of the suit, the original
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plaintiff expired and has been substituted by the present
petitioner. While making preparation for hearing, the
substituted plaintiff came to learn that an important
aspect to the effect that the original plaintiff was a
pardanashin lady was not pleaded in the plaint. The
pleadings in the plaint were also requiring some
clarification. Hence, she immediately filed an application
under Order 6 Rule 17 C.P.C. for amendment of the
plaint in the following manner:
"1) the following be added as per-3(a) of the
plaint.
3(a). That the deceased plaintiff No.1 Malati
Dibya was a rustic, illiterate and paradanasini
widow of an orthodox Brahmin family. She
had immense faith and confidence on the
defendant No.1 Bijaya Kumar Mishra who
happens to be the Grand son-in-law of Malati
and the defendant No.1 usually residing in the
house of Malati after his marriage. The
defendant No.1 taking advantage of the
fiduciary relationship with the deceased
plaintiff has misused the faith and confidence
of the deceased plaintiff reposed on the
defendant No.1, prevailed upon her and
practiced fraud on Malati. The defendant No.1
without the knowledge and consent of the
deceased plaintiff has managed to snatch
away the alleged sale deed dt. 15.1.1991 in
respect of the suit properties which came to
light after 26.1.2004.
2) That the following be added in para-5 of the
plaint.
"Basing upon the alleged fraudulent deed
dtd. 15.1.1991 the defendant No.1 has
managed to record his name in respect of the
properties covered under the deed dtd.
15.1.1991 fraudulently and illegally without
the knowledge and consent of the deceased
plaintiff. The preparation of M.S. R.O.R. in the
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name of the deceased defendant No.1 is this
fraudulent, illegal and confers no title in his
favour and not binding on the deceased
plaintiff or her successors who are claiming
through her."
5. Mr. Sahu further submits that the amendment
sought for is clarificatory in nature and will not change
the nature and character of the suit land. Although
hearing of the suit has already commenced, only P.W.1
has been examined and he is yet to be cross-examined.
Procedure is a handmaid justice of the court and it
should be moulded for effective and proper adjudication
of the lis in order to avoid multiplicity of litigations. He
relied upon the decision in the case of Revajeetu
Builders & Developers -v- Narayanswamy & Sons
and others, reported in 2009 (II) OLR 815 (SC),
wherein it has been held at paragraph-67 as follows:
Factors to be taken into consideration while
dealing with applications for amendments:
67. On critically analysing both the English and
Indian cases, some basic principles emerge which
ought to be taken into consideration while allowing
or rejecting the application for amendment:
(1) whether the amendment sought is
imperative for proper and effective
adjudication of the case;
(2) whether the application for amendment is
bona fide or mala fide;
(3) the amendment should not cause such
prejudice to the other side which cannot
be compensated adequately in terms of
money;
(4) refusing amendment would in fact lead to
injustice or lead to multiple litigation;
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(5) whether the proposed amendment
constitutionally or fundamentally
changes the nature and character of the
case; and
(6) as a general rule, the court should decline
amendments if a fresh suit on the
amended claims would be barred by
limitation on the date of application."
He also relied upon the decision in the case of
Narayan Mishra & two others -v- Champa Dibya
(dead) and after her Bhabani Dei and two others,
reported in 1985 (II) OLR 417, wherein it has been held
at paragraph-8 as follows:
"8. xxx xxx xxx
In our view, there is no justification as to why a
rule applicable to pardanashin ladies on the
ground of their ignorance and illiteracy should be
restricted to that class only and should not also
apply to the case of a poor lady who is equally
ignorant and illiterate, but is not pardanashin,
simply because she does not belong to that class,
the object of the rule of law being to protect the
weak and the helpless, the distressed and the
down-trodden and it should not be restricted to a
particular class or community. Even in the case of
a lady who is outside the pardanashin class, it is
for those who deal with her to establish that she
had the capacity of understanding that she had
been entering into the transactions voluntarily and
with full knowledge and import of what the
transactions actually meant."
6. It is his submission that if the principles laid
down in the case of Revajeetu Builders & Developers
(supra) are satisfied, the amendment can be allowed even
after commencement of trial of the suit. He further
submits that the standard and burden of proof is similar
for an illiterate lady and a pardanashin lady. Thus, the
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nature of standard and burden of proof will not change,
if the amendment is allowed. On the other hand, the
amendment is required for just adjudication of the suit.
He, therefore, prays for setting aside the impugned order
and to direct the learned Civil Judge to allow the
proposed amendment.
7. Mr. Mohapatra, learned counsel for the defendant
no.1-opp. party no.1 vehemently objected to the same. It
is his submission that earlier the original plaintiff had
filed a petition for amendment and it was allowed
incorporating para-5(a) to the plaint. At that point of
time, she did not choose to describe herself as a
pardanashin lady. Thus, the substituted plaintiff is
estopped to take such a plea. Further, it is his
submission that the amendment sought for is not
necessary for just adjudication of the suit, as it is
already there in the plaint. Trial of the suit has already
commenced and P.W. 1 has already been examined. Due
to the interim order passed by this Court, cross-
examination of P.W. 1 is deferred. Accordingly, he prays
for dismissal of the CMP.
8. Having heard learned counsel for the parties and
considering the proposed amendment vis-à-vis the
pleadings in the plaint, it appears that save and except,
the proposed amendment to the effect that the original
plaintiff was a pardanashin lady, all other pleadings were
available in the plaint, though in different words. Thus,
it is to be examined whether the proposed amendment to
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the effect that the original plaintiff was a pardanashin
lady would be necessary for just and proper adjudication
of the case and in absence of such pleading, the plaintiff
will be seriously prejudiced. It is the admitted case of
the parties that trial of the suit has already commenced
and P.W. 1 has already been examined. The cross-
examination of P.W. 1 is deferred due to the interim
order passed by this Court.
9. From the ratio decided in the case of Narayan
Mishra & two others (supra), it is clear that the
standard and burden of proof for an illiterate lady and a
pardanashin lady is one and the same. Thus, by
incorporating the pleading that the original plaintiff was
a pardanashin lady will not improve the case of the
petitioner, as pleading to the effect that the original
plaintiff was an illiterate lady is already available in the
plaint. It further appears that rest of the proposed
amendment is already there in the pleadings of the plaint
though in different words. When the original plaintiff did
not choose to describe herself as a pardanashin lady in
spite of the amendment of the plaint at her instance by
incorporating para-5(a) to the plaint, it will not be proper
on the part of the substituted plaintiff to take such a
plea, which the original plaintiff did not choose to. It
further appears that the proposed amendment is not
essential for proper adjudication of the suit as the same
are already there in the plaint itself.
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10. In that view of the matter, I am not inclined to
interfere with the impugned order. Accordingly, the CMP
being devoid of any merit stands dismissed.
11. The interim order dated 04.12.2018 passed in I.A.
No. 1498 of 2018 stands vacated.
12. 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.
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