AI Structured Summary
Not yet generated for this judgment
Judgment
Sanju Panda, J.—This writ petition has been filed by the Respondents-petitioners challenging the order dated 29.4.2003 passed by the learned District Judge, Cuttack in RFA No. 19 of 2003 allowing the application for amendment of the plaint during pendency of the appeal.
The brief facts, as narrated in the petition, are as follows:
The present opposite party was the owner in possession of Hal Plot No. 1726 corresponding to Sabik Plot No. 2154 belonged to Raghava Das Math. Sabik Plot Nos. 2155, 2194 and 2237 were the adjoining plots belonging to Cuttack Municipality of village Bisinabar. Arjuna Jena, the grand father of the opposite party, had obtained lease in respect of Sabik Plot No. 2154 measuring Ac.0.196 decs. and continued in possession of the said land since 1935. He cleared the bushes about Ac.0.21 decs. of land from Sabik Plot No. 2237 and Ac.0.20 decs. from Sabik Plot Nos. 2155 and 2194 and possessed the same amalgamating the land with Plot No. 2154 with the knowledge of Cuttack Municipality. Arjuna died in the year 1940. After him, his sons Balaram Jena and Paramananda Jena continued in possession of plot No. 2154 along with the land of the Municipality. Both Balaram and Paramananda filed Title Suit No. 113 of 1976 in the court of learned Sub-Judge, First Court, Cuttack for partition of the property. In the said suit, Paramananda was allotted Sabik Plot No. 2154 along with its structures raised by them and remained in possession of the land peacefully without any interference. The estate of Raghav Das Math vested to the State Government and after such vesting, Paramananda applied for settlement of the land fixing the rent in Vesting Case No. 178 of 1979 before the Tahasildar, Cuttack. The said land was settled with him with an area of Ac.0.196 decs. and the rent roll was issued. During Major Settlement operation, the Settlement authorities carved out Hal Plot No. 1726 with an area of Ac.0.193 decs. and recorded the same in the name of Paramananda under Khata No. 276, Unit No. 35 of Jhanjirmangala Section and in respect of Sabik Plot Nos. 2237, 2155 and 2194, the Settlement authorities measured the land possessed by Paramananda and carved out Bata Plot Nos. 1728/1882 with an area of Ac.0.21 decs. which corresponds to Sabik Plot No. 2237 (Part) and Plot No. 1729/1987 with an area of Ac.0.20 decs. which corresponds to Sabik Plot Nos. 2155 (Part) and 2194 (Part) and kept those plots in the name of Cuttack Municipal Corporation in Khata No. 1306 with note of possession m the name of Paramananda Jena. Said Paramananda Jena constructed a building for the purpose of running a hotel after obtaining permission from the Cuttack Municipality as well as the State Government in the year 1985. After his death, his sons were separated and partitioned the properties. The present opposite party who is one of the sons of Paramananda Jena got Sabik Plot No. 2154 corresponding to Hal Plot No. 1726 with the building in his share and remained in possession of the said Bata Plots where he had constructed a Pump house in a portion of the same and used the remaining portion as frontage of the hotel. As the Municipality wanted to demolish the constructions from the land on the plea of encroachment made by him, the suit was filed. He came to know that the shape of Hal Plot No. 1726 was changed from Sabik Plot No. 2154 and a portion of it had been included in Plot No. 1728/1882 description of which was wrongly made in the settlement map. The Petitioners who are the Defendants-respondents filed a revision to delete the name of Paramananda Jena whose name was entered in the remarks column of ROR before the Commissioner of Land Records and Settlement and the same is subjudice. The suit filed by the opposite party was dismissed. Against the said dismissal order, RFA was filed. The said appeal was heard on merits. Before pronouncement of the judgment, the Plaintiff-appellant filed an application for amendment of the plaint. In the said amendment, the Plaintiff further elucidated the facts already stated in original para-7 of the plaint. For better appreciation, the comparative chart of the original para-7 of the plaint and the amendment of para- 7 are given hereunder:
Original Para- 7 of Annexure-1
That so far as the possession of Paramananda Jena in respect of Sabik Plot No. 2237, 2155 and 2191 belonging to Municipality is concerned the settlement authorities measured the land possessed by Paramananda and carved out two Batta Plots one is Plot No. 1728/ 1882 an area A0.21 decs. which corresponds to Sabik Plot No. 223 7(Part) and another Plot No. 1729/1987-A0.20 decs. which corresponds to Sabik Plot No. 2155 Part and 2194 (Part) and kept those two plots in Municipality Khata No. 1306 with note of possession of Paramananda Jena.
Amendment of Para-7 in Annexure-4.
That at the time of initial steps of the Major Settlement Plot index was prepared as per the share of the Sabik Plots. The entire sabik plot No. 2237 of vill. Kusunpur was carved out as hal plot No. 1728 and the entire area of sabik plot No. 2155 of same village was carved out as hal plot No. 1729 and both the plots were recorded in the name of Cuttack Municipality. Similarly the entire area of sabik plot No. 2154 of village Town Bisinabar carved out as hal plot No. 1726 and recorded in the name of Paramananda Jena. As there was exchange of some land between Brahmananda Mishra and Paramananda Jena, the later filed objection case No. 1074 before the A.S.O. Cuttack Municipality being the boundary tenant appeared in the above objection case through their Amin Narayana Das, A.S.O. after hearing the parties passed order accepting the exchange of land done by Paramananda Jena and Brahmananda Mishra on the Northern�Eastern side of Plot No. 2154 and corrected the map accordingly. So far as the hal plot No. 1728 and 1729 belonging to the Cuttack Municipality is concerned as Paramananda Jena is in possession of some portion from both the plots the A.S.O passed order for carving of the Batta Plot No. 1882-A.0.21 decs. on plot No. 1728 and batta plot No. 1987-A0.20 decs. On plot No. 1729 and corrected the sketch map accordingly. As per the corrected sketch map the suit land was shown in its sabik shape without any change and remained an area A0.193 decs. The Municipality authority did not object to the sketch map nor claimed the suit land as part of sabik plot No. 2237 before the settlement authority or higher courts.
The present Petitioners filed their objection to the said amendment. Their main objection was that the Plaintiff as P.W. 1 in his evidence stated in examination-in-chief that "the adjoining Municipal Sabik Plot No. 2237 was made Hal Plot No. 1728/1882 of an area of A.0.21 decimals and Sabik Plot No. 2155 was made Hal Plot No. 1729/1987 of A.0.20 decimals'''' and such admission of the Plaintiff was taken away by way of introducing the amendment. They did not explain the delay in seeking the amendment at a later stage, i.e., during pendency of the appeal. If the amendment is allowed, it will irretrievably prejudice the interest of the Defendants-respondents. The learned District Judge in a well discussed judgment, considering the amendment application and its objection, came to the finding that the amendment of the Plaintiff was only a further explanation of the fact by way of amendment and it will not take away any admission if the amendment is allowed. Since the controversy relates to identification of the suit land, the learned District Judge allowed the amendment application and directed for deputation of a civil court commissioner for identification of the disputed land making comparative measurement of the land corresponding to Sabik and Hal Settlement maps and the RORs of both the Settlement Operations.
The Learned Counsel appearing for the Petitioners submitted that by way of amendment the Plaintiff has introduced entirely a different new case and he has sought amendment at a belated stage without explaining the delay. Therefore, the impugned order passed by the learned District Judge is liable to be interfered with in exercise of the jurisdiction under Article 227 of the Constitution of India. In support of his contention, he cited the decisions of the apex Court in the case of Modi Spinning and Weaving Mills Co. Ltd. and Another Vs. Ladha Ram and Co., and Hiraji Tolaji Bagwan (since deceased by L.R''s) Vs. Shakuntala, .
The Learned Counsel appearing for opposite party Appellant submitted that the Plaintiff has only further elucidated the facts already stated in paragraph- 7 of the original plaint and the Plaintiff has neither introduced any new facts nor has taken away any admission by him and the amendment was necessary for just decision of the suit taking into consideration the facts and circumstances of the case. Therefore, the learned District Judge has rightly allowed the amendment application. Hence, the impugned order need not be interfered with.
In both the decisions referred to above, the apex court, while considering the amendment of the written statement, has held that if the amendment is allowed it will displace the Plaintiffs case and his right to get the preliminary partition decree and in the said background the amendment was rejected. The apex Court has further held therein that the amendment introducing entirely different new case and seeking to displace the Plaintiff completely from admissions made by Defendants in the written statement is liable to be rejected. But in the present case, as already stated in the above paragraphs, by way of amendment sought the Plaintiff has only further elucidated the facts stated in para- 7 of the original plaint. The parties have known the case for which they are contesting and they were not surprised about any fact by way of amendment.
In view of the foregoing paragraphs, the position of law that the application for amendment will have to be considered bearing in mind the interest of justice and purpose of allowing the amendment is to minimize the litigation this Court is not inclined to interfere with the impugned order dated 29.4.2003 passed by the learned District Judge, Cuttack in RFA No. 19 of 2003 in exercise of the jurisdiction under Article 227 of the Constitution of India.
The writ petition is accordingly dismissed. No costs.