The court's decision was influenced by the provisions of Order VI Rule 17 CPC, Order XI Rules 12, 13 & 14 CPC, Order XII Rule 16 CPC, and Order 39 R 1 & 2 CPC, which allowed for the addition of properties to the suit for partition and the maintenance of status quo with respect to possession and title of the properties of the parents.

I.A. No.4696/2014 (filed by plaintiff under Order XII Rule 16 CPC)

1. This application is disposed of as not pressed.

I.A. No. 8845/2015 (filed by plaintiff u/O XI Rules 12, 13 & 14 CPC)

2. This application is disposed of as not pressed as plaintiff has filed secondary evidence to show the ownership of the parents of the plaintiff of the properties of which partition was originally claimed as also additional properties with respect to which application for amendment is filed.

I.A. No.10037/2015 (filed by plaintiff u/O VI Rule 17 CPC)

3. This is a suit for partition and other related reliefs filed by the plaintiff who is the daughter of late Dr. Shyam Sunder Mohapatra and late Smt. Radha Devi who expired respectively on 28.04.2006 and 31.05.2008. By this application the plaintiff seeks to add to the suit properties those properties which were left out originally and thus have to be added as these properties of the parents have to be also partitioned. These properties which are sought to be added are in two sets. One set of properties are those which stood in the name of the parents of the plaintiff on the dates of death of the parents and other set of properties are those which did not stand in the name of the parents on the dates of their death. Counsel for the plaintiff very fairly concedes that he restricts the present application as also the suit for partition with the other related reliefs to those properties which were standing in the names of the parents of the plaintiff on the dates of their death. Once that is so, counsel for the defendant no.1, and who is presently the only contesting defendant, does not oppose the application without prejudice to the rights of the defendant no.1 to raise all defences of fact and law in his written statement which will be filed to the amended plaint.

This I.A. is thus allowed and disposed of.

4. Counsel for defendant no.2, who is set ex parte, sought to address arguments on the application under Order VI Rule 17 CPC filed by the plaintiff, but defendant no.2 cannot be heard because no doubt a defendant who is ex parte can participate at all stages but such participation would be a futile participation where there is no such defence existing of such a defendant either to the suit or this application, and therefore really only the application for amendment as per the averments made therein have to be examined, subject to the modification as made by the counsel for the plaintiff during the arguments. So far as the application for amendment is concerned, the defendant no.2 need not be heard, however, defendant no.2 will always get a fresh right to file written statement to the newly amended plaint.

5. Amended plaint filed cannot be taken on record inasmuch as some of the properties which stood in the name of the parents as on the dates of their death, are alleged by the plaintiff to have been sold by the defendants or some of the defendants. With respect to these properties which are therefore illegally sold as per the case of the plaintiff, plaintiff will have to seek reliefs of recovery of monies and pay ad valorem court fees. Accordingly, the fresh amended plaint be filed which will essentially be in three parts (of course, with related reliefs) i.e for partition of the properties which stood in the names of the parents on the dates of death of the parents, relief of recovery of monies with respect to properties which are said to be owned by the parents on the dates of their death which but as per the plaintiff have been illegally sold by the defendant(s) and injunctions.

6. At this stage, counsel for the plaintiff on instructions from the plaintiff who is present in person, states that the plaintiff gives up the relief of the recovery of monies with respect to the properties which as per the case of the plaintiff were in the name of the parents on the dates of their death but were said to have been illegally sold by the defendant(s). Accordingly, the amended plaint be now filed