Gangadhar Rout vs Additional District Judge, Bhadrak and another

P.K. Misra, J.—Plaintiff has filed this writ application. In O. S. No. 102 of 1981, preliminary decree for partition was passed. During pendency of the final decree proceeding, the plaintiff-petitioner filed an application for amendment of the plaint for incorporation of certain plot numbers and it was also prayed that the preliminary decree may be accordingly amend. On 20-7-1990, the trial court allowed the said petition for amendment by observing that the counsel for defendant No. 1 had agreed that the amendment may be allowed subject to payment of cost. It is not disputed that cost of Rs. 30/- was paid by the plaintiff which was accepted by defendant No. 1. Accordingly, in the plaint the corrected new properties were inserted. Subsequently, defendant No. 1 after about expiry of three years filed a petition for recalling the earlier order. The trial court having allowed such petition and having recalled the earlier order relating to amendment, the petitioner filed revision which having been dismissed, the present writ application has been filed.

In the present case, in spite of notice there has been no appearance on behalf of defendant No. 1.

There is no dispute that the earlier order allowing amendment of the plaint had been passed on consent of defendant No. 1. There is no allegation that the recital in the order to the effect that counsel for defendant No. 1 had agreed to the amendment, was an erroneous statement. Such application for -recalling had been filed more than three years after the order of amendment was passed. As a matter of fact, the cost directed to be paid had been accepted by defendant No. 1. In the above back-ground, there is no escape from the conclusion that defendant No. 1 was estopped from challenging the earlier order of the trial court allowing amendment. Moreover, the said order having been passed on consent could not have been recalled in the absence pf any plea and proof that the consent had been fraudulently obtained or obtained by fraud or coercion. In the above connection, the decisions reported in 81 1996 CLT 119 (Sakhi Dei (after her) Laxmi Dei v. Banamali Sahu & others) and Cudise Trinath Rao Vs. Sudhansu Prasad Padni and Another, are relevant.

In such view of the matter, the order passed by the revisional court and the order passed by the trial court on 24-3-1994 recalling the earlier order dated 20-7-1990 cannot be sustained and are hereby quashed. However, since plaint had been permitted to be amended, defendant No. 1 or other defendants should be given an opportunity for filing additional written statement and if any disputed question arises, the trial court is to consider the same by giving fresh opportunity of bearing to all the parties arid if necessary a fresh preliminary decree may be passed. Such a direction is being given keeping in view the peculiar facts and circumstances of the case.

Subject to aforesaid direction, the writ application is allowed. There will be no order as to costs.

Writ application allowed.