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High Court Of Orissa
R. C. Patnaik, J.
BHASKAR CHANDRA BEHERA - Appellant
Versus
RANITAL RICE MILL CO. - Respondent
Civil Revn. 52 Of 1980
Decided On : 08/09/1982
AMENDMENT OF PLEADINGS - SUBSTITUTION OF PLEADINGS - INCONSISTENT PLEADINGS - SUBSTITUTION OF PLEADINGS NOT PERMITTED WHERE IT WOULD NEGATE ADMISSIONS MADE IN THE ORIGINAL PLEADINGS.
Fact of the Case:
Defendants 1, 2, and 3 filed an application under Order 6, Rule 17 of the Civil Procedure Code (CPC) for amendment of their written statements by way of substituting the genealogy given in paragraph 30 and adding three paragraphs as paragraphs 31, 32, and 33. The ground for the amendment was that certain other particulars were not incorporated in details although such defense had been taken in the earlier written statement.
Finding of the Court:
The court held that the proposed amendment was not permissible as it would negate the admissions made by the defendants in their original written statements. The court further held that the defendants did not plead inadvertence or mistake as the reason for the proposed amendment.
Issues: Whether the defendants could be allowed to amend their written statements by substituting the genealogy given in paragraph 30 and adding three paragraphs as paragraphs 31, 32, and 33.
Ratio Decidendi: The court held that the proposed amendment was not permissible as it would negate the admissions made by the defendants in their original written statements. The court further held that the defendants did not plead inadvertence or mistake as the reason for the proposed amendment.
Final Decision: The court dismissed the revision petition filed by the defendants.
R. C. PATNAIK, J.
( 1 ) THIS revision is directed against an order of the Munsif, Bhadrak, rejecting an application for amendment of the written statements filed by defendants 1, 2 and 3.
( 2 ) THE plaintiff instituted a suit for declaration of title, confirmation of possession; in the alternative for recovery of possession and injunction. The suit properties are comprised in two Schedules 'a' and 'b' which originally belonged to the Behera family. Long before 1928, the members had amicably divided the property by partition by metes and bounds setting apart a tank and the road for common use. In view of the partition, in the record-of-rights of 1928, the property stood separately recorded as per the allotment.
( 3 ) SCHEDULE 'a' property passing through various hands in course of transactions ultimately reached the plaintiff who purchased the same by a registered sale deed dated 7-1-1963.
( 4 ) IN regard to the 'b' schedule property, it is the plaint case that this property fell to the share of the branch consisting of Jaladhar, Naran and Nisakar. On the death of Naran and Nisakar, Jaladhar became the sole survivor and sole owner of the 'b' schedule property. On his, death, his mother Pata by registered sale deed dated 6-6-49 sold the same to Gangua, who in turn, by registered sale deed dated 26-5-1959 sold the property to Muralidhar (defendant No. 13 ). By registered sale deed dated 29-1-64, Muralidhar sold the 'b' schedule property to the plaintiff. The plaintiff has alleged that the defendant No. 3 claiming to have purchased the property from defendants 1 and 2 forcibly constructed a thatched structure over a part of 'b' schedule property and trespassed over another portion. On these allegations, the suit has been filed for the reliefs stated above.
( 5 ) DEFENDANTS 1 and 2 together have filed one written statement and defendant No. 3 another. Their plea virtually is the same. According to them, there was a partition in the Behera family and the 'b' schedule property fell to the share of Kali and Dinei, who belonged to the branch of Bali. In the 'b' schedule, Kali had half share and Dinei the other half. In the remarks column of the 1928 settlement record-of-right the property was erroneously recorded in the names of Nisakar, Naran and Jaladhar. They disputed that the 'b' schedule was exclusively allotted to the branch of Narana, Jaladhar and Nisakar as alleged by the plaintiff. Their plea is virtually that Schedule 'b' was not exclusively allotted to the branch of Nara, Jaladhar and Nisakar; but was allotted to Dinei and Kali, the latter's legal representatives being Naran, Jaladhar and Nisakar. (See paras. 9 and 14 of the written statement ). The half share belonging to the branch of Kali, father of Jaladhar Naran and Nisakar devolved upon Nisakar's daughter Anudi, after whom defendant No. 1 inherited the half share in the 'b' schedule. The other half share of Dinei was succeeded on his death by his son Arjun and after him by defendant No. 1. So, defendants l and 2 were the joint owners of the 'b' schedule. The manner of passing of the property from hand to hand, as alleged in the plaint, has been denied. According to the defendants, Jaladhar did not become the sole owner by survivorship, nor did Pata acquire full ownership over 'b' schedule. So, transfer by her and the subsequent transfers culminating in the purchase by the plaintiff has not clothed the plaintiff with any title to the 'b' schedule property.
( 6 ) THE suit was filed in the year 1976. Issues were framed on 4-1-78. Hearing of the suit was being adjourned on some ground or the other. On 3-12-79, defendants 1, 2 and 3 filed an application under Order 6, Rule 17 of the Civil P. C. for amendment of their written statements by way of substituting the genealogy given in para 30 and adding three paragraphs as paras 31, 32 and 33. The ground on which the amendment was sought is as follows:--
"that the aforesaid defendants have filed their written statement an
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