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Judgment
K.R. Mohapatra, J
This matter is taken up through hybrid mode.
Order dated 19th February, 2024 (Annexure-5) passed in CS No.16 of 2021, whereby learned Civil Judge, Nimapara rejected an application under Order VI Rule 17 CPC filed by the Plaintiffs for amendment of the plaint.
It is submitted by learned counsel for the Petitioners that the suit has been filed by the Petitioners for permanent injunction simpliciter. Although Schedule ‘A’ property stands recorded in the name of Defendant/Opposite Party No.2, but the same being a residential house and both Plaintiffs and Defendants are staying in the said house, the same is a joint family property and the Defendant No.2 cannot claim any exclusive right, title and interest over the same. It is further submitted that taking advantage of recording of the land in the name of Opposite Party No.2, the Defendant No.1 is trying to alienate the property by influencing Defendant No.2. In view of the above, Petitioners before commencement of the trial, filed an application for amendment of the plaint to introduce pleadings to claim that Schedule ‘A’ property (residential house) is the joint family property. The said application was rejected by learned trial Court delving into merit of the suit, which is not permissible in law. Learned trial Court also did not make any endeavour to find out as to whether said amendment is necessary for just adjudication of the suit or not. Hence, the impugned order being not sustainable is liable to be set aside.
Taking note of the submission of learned counsel for the Petitioners and on perusal of records, more particularly the plaint, it appears that Schedule ‘A’ property is recorded exclusively in the name of Defendant No.2/Dhobi Prusty in the consolidation ROR published in the year 1993, which is a document of title. Further, Section 14 of the Hindu Succession Act, 1956 makes it clear that the property of a female Hindu is her absolute property. Thus, the claim of Petitioners that Schedule ‘A’ residential house is a joint family property, cannot be adjudicated in a Civil Suit.
When adjudicating a petition under Order VI Rule 17 CPC, the Court is under legal obligation to see as to whether the pleading sought to be incorporated by way of amendment, can be adjudicated in the suit or not. The plea taken by the Petitioners in the petition for amendment cannot be adjudicated in the suit of present nature. Thus, learned trial Court has committed no error in rejecting the petition for amendment.
Accordingly, the CMP being devoid of any merit stands dismissed.
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