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High Court Of Orissa
B. N. Misra, J.
RAMESHLAL SANTUKA - Appellant
Versus
SURESHLAL SANTUKA - Respondent
Civil Revn 487 Of 1983
Decided On : 10/24/1983
AMENDMENT OF PLEADINGS - ORDER 6, RULE 17, CIVIL PROCEDURE CODE - TYPOGRAPHICAL ERROR - ADMISSION OF FACT - WITHDRAWAL - CONDITIONS FOR ALLOWING AMENDMENT - CIVIL REVISION NO. 487 OF 1983 - ALLOWED - CIVIL REVISION NO. 486 OF 1983 - DISPOSED OF.
Fact of the Case:
Defendant-petitioner Rameshlal, Maheshlal, Dinesh Lal, and the Plaintiff-opposite party Sureshlal are the four sons of the late Kedarnath Santuka. The plaintiff's suit is for partition of the suit lands together with buildings, structures, and the fittings described in the schedule appended to the plaint. According to the plaintiff, the suit properties were acquired in 1966 out of joint family funds. On 30-10-1978, there was an oral partition amongst the co-sharers in which the suit properties were allotted jointly to the plaintiff and the defendant in equal shares. On 27-7-1979, a memorandum of family settlement was drawn up on the basis of the oral partition which had taken place on 30-10-78. The plaintiff and the defendant were in joint possession of the suit properties and they decided to construct two similar quarters on the suit lands. After the commencement of the construction work of one quarters, the plaintiff and defendant entered into a written agreement on 27-8-1980, the terms of which have been indicated in para 3 of the plaint. The plaintiff and the defendant have each contributed about Rs. 2,80,000/- for the construction work so far. The construction of the first quarters was completed and thereafter construction work of the second quarters was started. The plaintiff and defendant had so long remained in the ancestral house and the plaintiff is still staying in that house, but the defendant shifted to the newly built house on the suit lands. About a month prior to the filing of the suit, differences arose between the brothers and the defendant alone by himself is proceeding with the construction work of the second quarters by using inferior type of materials with the idea that while the defendant would stay in the first quarters, the plaintiff would be obliged to occupy the second quarters. In these circumstances, the plaintiff was obliged to file the suit for partition against the defendant.
Finding of the Court:
The court held that the defendant's assertion that the figure '1978' was a typographical error must be accepted as there is no challenge or denial by the plaintiff. The present suit is one for partition between the brother and the nature and character of the suit is certainly not going to change if the proposed amendment is allowed. On consideration, the court held that it would be just and proper to allow the error to be rectified as prayed for by the defendant for a proper and effective adjudication of the disputes between the parties.
Issues: 1. Whether the defendant can be allowed to amend the written statement by substituting the figure '1980' for '1978' in para-28 (c) of the written statement? 2. Whether the amendment would change the nature and character of the suit and prejudice the plaintiff?
Ratio Decidendi: 1. The court held that an admission made by a party might be withdrawn or might be explained away and therefore it could not be said that by amendment an admission of fact could not be withdrawn. There is no ban in law to allow an amendment withdrawing an admission of fact. The matter would always depend on the facts and circumstances of each case. 2. The court held that the defendant's assertion that the figure '1978' was a typographical error must be accepted as there is no challenge or denial by the plaintiff. The present suit is one for partition between the brother and the nature and character of the suit is certainly not going to change if the proposed amendment is allowed. On consideration, the court held that it would be just and proper to allow the error to be rectified as prayed for by the defendant for a proper and effective adjudication of the disputes between the parties.
Final Decision: Civil Revision No. 487 of 1983 is allowed. The impugned order dated 15-7-1983 is set aside and the defendant is hereby permitted to amend the written statement by substituting the figure '1980' for '1975' in para-28 (c) of the written statement subject to the condition that the defendant shall pay to the plaintiff a sum of Rs. 350/- as costs within fifteen days from the date of this order, failing which this revision shall stand dismissed and the impugned order shall take effect. The plaintiff, if he so chooses, shall be permitted to recall the witnesses already examined by him for re-examination. There shall be no order as to costs. The lower court records be returned immediately. In view of the order passed in Civil Revision No. 487 of 1983, no separate order need be passed in Civil Revision No. 486 of 1983 which is accordingly disposed of without costs.
B. N. MISRA, J.
( 1 ) THESE two revisions arise oat of Title Suit No. 383 of 1982 pending on the file of the learned Additional Subordinate Judge, Cuttack. The petitioner and the opposite party are the defendant and plaintiff respectively in the said suit. Civil Revision No. 487 of 1983 is directed against the order dated 15-7-1983 passed by the learned Additional Subordinate Judge rejecting the petitioner's application under Order. 6, Rule 17 of the Civil P. C. for amendment of the written statement. Civil Revision No. 486 of 1983 is directed against the order dated 16-7-1983 passed by the learned Additional Subordinate Judge rejecting the petitioner's application under Section 151 of the Civil P. C. praying for review of the aforesaid order dated 15-7-1983. These two revisions have been heard analogously.
( 2 ) DEFENDANT-PETITIONER Rameshlal, Maheshlal, Dinesh Lal and the Plaintiff-opposite party Sureshlal are the four sons of the late Kedarnath Santuka. The plaintiff's suit is for partition of the suit lands together with buildings, structures and the fittings described in the schedule appended to the plaint. According to the plaintiff, the suit properties were acquired in 1966 out of joint family funds. On 30-10-1978 there was ar oral partition amongst the co-sharers in which the suit properties were allotted jointly to the plaintiff and the defendant in equal shares on 27-7-1979 a memorandum of family settlement was drawn up on the basis of the oral partition which had taken place on 30-10-78. The plaintiff and the defendant were in joint possession of the suit properties and they decided to construct two similar quarters on the suit lands. After the commencement of the construction work of one quarters, the plaintiff and defendant entered into a written agreement on 27-8-1980, the terms of which have been indicated in para 3 of the plaint. The plaintiff and the defendant have each contributed about Rs. 2,80,000/- for the construction work so, far. The construction of the first quarters was completed and thereafter construction work of the second quarters was started. The plaintiff and defendant had so long remained in the ancestral house and the plaintiff is still staying in that house, but the defendant shifted to the newly built house on the suit lands. About a month prior to the filing of the suit, differences arose between the brothers and the defendant alone by himself is proceeding with the construction work of the second quarters by using inferior type of materials with the idea that while the defendant would stay in the first quarters, the plaintiff would be obliged to occupy the second quarters. In these circumstances, the plaintiff was obliged, to file the suit for partition against the defendant.
( 3 ) IN his written statement the defendant has denied that there was any oral partition or oral family settlement between the co-sharers on 30-10-1978. It is also denied that the plaintiff has half share in the suit properties. According to the defendant, the suit properties were acquired from the funds of the partnership firm of 'jayanarayan Kedarnath' which was subsequently renamed as 'jay Kay' and therefore the suit properties belonged to the partnership firm and not to the Hindu undivided family. The defendant has further stated that no doubt a family settlement deed between the father, mother and four sons had come into existence on 27-2-1979, but the said deed was void, unenforceable, inoperative and inadmissible. According to the defendant, the plaintiff is not entitled to any share in the srat properties.
( 4 ) IN course of trial of the suit, on 12-5-1983 the defendant filed a petition under Order 6, Rule 17, Civil P. C. for amendment of the written statement by substitution of the figure 1980' for the figure 1978' occurring in the second sentence of the sub-para of para 27 of the written statement. The defendant has seated in his amendment petition that the figure 1978' was a typographical error and tha
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