High Court of Orissa
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Feb-2024 19:30:28 HIGH COURT OF ORISSA: CUTTACK CMP No.1529 of 2016 (In the matter of an application under Articles 226 and 227 of the Constitution of India, 1950) Rabindranath Sahu ******* … -versus- Petitioner Sushila Sahu and others … Opposite Parties
Legal Reasoning
: Mr. Banshidhar Baug, Advocate on behalf of Mr. B.K. Mohanty, Advocate For Opp. Party (For Opposite Party Nos.1, 6 and 7) : Ms. Deepali Mohapatra, Advocate CORAM: JUSTICE KRUSHNA RAM MOHAPATRA
Decision
------------------------------------------------------------------------------- Heard and Disposed of on 23.02.2024 ------------------------------------------------------------------------ JUDGMENT K.R. Mohapatra, J. 1. 2. This matter is taken up through hybrid mode. Petitioner in this CMP seeks to assail the order dated 14th September, 2016 (Annexure-4) passed in CS No.270 of 2012, whereby learned Civil Judge (Senior Division), Berhampur rejected an application under Order VI Rule 17 CPC filed by the Plaintiff- Petitioner for amendment of the plaint. 3. Mr. Baug, learned counsel being authorized by learned counsel for the Petitioner submits that the suit has been filed for partition and for a declaration that RSD No.6552 dated 26th October, 2009 executed in favour of the Defendant No.2, namely, CMP No.1529 of 2016 Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Feb-2024 19:30:28 // 2 // Sushila Sahu is null and void and not binding on the Plaintiff. During pendency of the suit, Defendant No.1, namely, Kasinath Sahu died on 29th December, 2015. Defendant No.1 was none other than the father of the Plaintiff-Petitioner. During his lifetime, he had executed Registered Will No.30601400002 dated 1st January, 2014 bequeathing his fifty per cent share in the suit property in favour of the Plaintiff. This being a subsequent event during pendency of the suit, an application under Order VI Rule 17 CPC was filed for amendment of the plaint to bring on record the aforesaid subsequent development and to introduce a prayer to declare his right, title and interest over the share of Defendant No.1 by virtue of the Registered Will executed in his favour and also over the entire suit property. 4. Mr. Baug, learned counsel for the Petitioner submits that it is borne out from the plaint that there was an amicable partition between the Plaintiff and his father, in which western side of the property falls to the share of the Plaintiff. By executing the Registered Will, eastern half, over which the said Kasinath Sahu had absolute right, title and interest, has been bequeathed in favour of the Plaintiff. Thus, he became the absolute owner in respect of the entire suit property. In view of the above, the amendment was inevitable for a just decision in the suit. There is no legal impediment to entertain an application under Order VI Rule 17 CPC. Learned trial Court, holding that by allowing the amendment, the nature and character of the suit will be changed, rejected the petition. Hence, this CMP has been filed. 5. Mr. Baug, learned counsel further submits that in order to avoid multiplicity of litigation, the amendment proposed should be CMP No.1529 of 2016 Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Feb-2024 19:30:28 // 3 // incorporated in the plaint. Change in nature and character of the suit cannot be a bar for entertaining the application under Order VI Rule 17 CPC. He, therefore, submits that learned trial Court has committed an error in refusing the prayer for amendment holding that the nature and character of the suit will be changed, if the proposed amendment is allowed. 6. Miss Mahapatra, learned counsel for Opposite Party Nos.1, 6 and 7 submits that by the way of amendment, the Petitioner sought to incorporate certain facts, which will change the entire basis of the plaint. The Plaintiff has sought for partition of the suit property and declaration of the sale deed executed in favour of the Opposite Party No.1 to be void stating that it is an ancestral property. By way of amendment, the Plaintiff sought to introduce a story, as if her husband, deceased-Defendant No.1 (Father of the Plaintiff) was the absolute owner of the property and the Plaintiff acquired absolute right, title and interest over the entire suit property, as by executing the will, the deceased-Defendant No.1 bequeathed his fifty per cent share in favour of the Plaintiff. She, therefore, submits that learned trial Court has committed no error in holding that the nature and character of the suit will be changed, if the amendment is allowed. 7. Taking note of the submission made by learned counsel for the parties and on perusal of the record, it appears that the suit has been filed for partition and to declare the sale deed dated 26th October, 2009 in favour of the Defendant No.2-Opposite Party No.1 to be null and void and not binding on the Plaintiff. By way of proposed amendment, the Plaintiff wants to introduce a fresh cause of action stating that he has acquired right, title and interest CMP No.1529 of 2016 Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Feb-2024 19:30:28 // 4 // over the suit property by virtue of a Will executed by his father on 1st January, 2014. It is submitted that his father, namely, Kasinath Sahu (Defendant No.1) died on 29th December, 2015. Thus, the Plaintiff claims exclusive ownership over the suit property, as his father bequeathed his fifty per cent share in his favour by virtue of the Will. By virtue of the amendment, the Plaintiff wants to introduce a fresh cause of action and seek for a relief on that basis by amending the plaint. Such an amendment is not permissible in the eye of law as it will completely change the foundation of the suit and nature and character of the suit itself. Thus, learned trial Court has committed no error in rejecting the prayer for amendment of the plaint. 8. Accordingly, the CMP, being devoid of any merit, stands dismissed. 9. Interim order dated 6th December, 2016 passed in Misc. Case No.1600 of 2016 stands vacated. 10. Dismissal of the CMP shall not be a bar for the Plaintiff to take recourse of law permissible in law. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge High Court of Orissa, Cuttack Dated 23rd February, 2024/ Rojalin CMP No.1529 of 2016 Page 4 of 4