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Judgment
P.K. Mohanti, J.—This revisional application is directed against an order refusing leave to amend the written statement.
The Plaintiffs-opposite parties brought Money Suit No. 190 of 1973 for recovery of a sum of Rs. 770/- as compensation for alleged removal of cocoanuts from the trees standing on plot No. 1803 under Khata No. 660. The Plaintiffs'' case was that they purchased the land with the cocoanut trees by a registered sale-deed dated 19-8-1970 from one Madhusudan Nanda who had obtained the same by a lease from the State of Orissa on 4-1-1968.
The Defendants filed written statement contending, inter alia, that the suit was bad for nonjoinder of parties and that neither the Plaintiffs nor their vendor had right, title or possession over the land at any point of time. It was alleged that the deity Jageswari Thakurani is the owner in possession of the land in question and that the cocoanut trees had been planted by the villagers on behalf of the said deity and they have been in possession and enjoyment of the same since the year 1935.
By a petition dated 5-1-1978 the Defendants sought for leave to amend the original written statement by way of addition of the following averments.
(a) The State Government, Madhusudan Nanda and Jageswari Thakurani have not been made parties to the suit.
(b) The lease deed said to have been obtained by Madhusudan Nanda from the State of Orissa is illegal, void and inoperative. The land covered under the said lease being a communal land could not vest in the Government and as" such, the Government was not competent to lease out the same.
(c) The lease was not duly executed as the Governor has not executed the same.
The Plaintiffs raised objection to the proposed amendment on the grounds that it would change the nature of the suit and that it was'' inconsistent with the plea taken in the original written statement.
The learned Munsif took the view that the proposed amendment, if allowed, would change the nature of the suit and that there was no reason as to why the State Government and Madhusudan Nanda would be made parties to the suit. Accordingly he refused to grant leave for amendment of the written statement.
It is urged in this civil revision that the learned Munsif acted in the exercise of his jurisdiction with material irregularity in holding that the proposed amendment would change the nature of the suit.
Leave to amend written statement ought to be granted when the amendment sought is not inconsistent with the plea taken in the original written statement and when no right of the Plaintiffs is defeated by allowing amendment.
Having heard the learned Counsel for the parties and having gone through the records, I am of opinion that the proposed amendment is not inconsistent with the plea taken in the original written statement and that it does not change the nature of the suit. In paragraph 4 of the original written statement the Defendants had taken the plea that the suit was bad for non-joinder of parties. By way of amendment they wanted to add to that paragraph that the State Government, Madhusudan Nanda and Jageswari Thakurani marfat the villagers of Algum have not been made parties. Thus by the proposed amendment the Defendants sought to furnish particulars of the persons for whose non-joinder the suit, according to them, suffered from defect of parties. Similarly, in paragraphs 7 and 12 of the original written statement, the Defendants pleaded that the Plaintiffs sale-deed was fake, collusive and devoid of consideration and that their vendor had absolutely no right, title or possession over the suit land and as such, the alleged conveyance did not confer any right, title or possession on the Plaintiffs, It was also alleged in paragraph 12, that Jageswari Thakurani, represented by the Defendants and the entire body of villagers of Algum, is the owner in possession of the land and that the cocoanut trees had been planted by the .entire body of villagers on behalf of the said deity. By the proposed amendment, the Defendants wanted to add a new paragraph to the effect that the lease deed said to have been obtained by Madhusudan Nanda is illegal, void and inoperative and that the land covered by the lease being a communal land of villagers did not vest in the Government and as such the Government was not competent to lease out the same. The lease was also sought to be challenged on the ground of noncompliance with the formalities prescribed under Article 299 of the Constitution. Thus it will be seen that the proposed amendment is not inconsistent with the case set up by the Defendants in the original written statement and it is only by way of abundant caution and with an objective to elucidate and expand the pre-existing facts already pleaded in the original written statement. No valid objection can be sustained to such amendment being allowed. There will be no change in the nature of the suit. This is also not a case where the Plaintiffs are taken by surprise so as to cause prejudice to them.
The learned Munsif has failed to exercise a jurisdiction vested in him under Order VI, Rule 17, CPC and has acted with material irregularity on a completely erroneous reading of the pleadings.
For the reasons stated, this revisional application is allowed and the order of the learned Munsif is set aside. Leave to amend the written statement as sought for by the Defendants is hereby granted. Parties to bear their own costs.
Application allowed.