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1985 Supreme(Ori) 140
High Court Of Orissa
D. P. MOHAPATRA
SABITRI DEBI - Appellant
Versus
RAMACHANDRA - Respondent
CIV. REVN. 202 Of 1982
Decided On : 07/01/1985
B.Routray, G.RATH, M.MISHRA, R.K.MOHAPATRA, U.C.Panda
An amendment to the pleadings should not be allowed if it is not relevant or necessary for effective adjudication of the dispute between the parties.
Headnote:
AMENDMENT OF PLAINT - REJECTION - GROUNDS - RELEVANCE AND NECESSITY - ADMISSION OF FACT - WITHDRAWAL - CONDITIONS - CIVIL PROCEDURE CODE, 1908 - SECTION 115.
Fact of the Case:
The plaintiff filed a suit for partition and specific allotment of her share in the joint family properties. In her plaint, she alleged that the properties were ancestral joint family properties belonging to the branch of Harekrushna in which Bidyadhar @ Budhi, Jadu, and Padmanav have 1/3rd interest each. The defendants filed written statements and took different stands regarding the nature of the properties. The plaintiff then filed an application to amend the plaint to state that the properties were the separate properties of late Harekrushna. The trial court rejected the application.
Finding of the Court:
The court held that the trial court did not err in rejecting the application for amendment of the plaint. The court found that the proposed amendment was neither relevant nor necessary for effective adjudication of the case. The court also held that the reason given by the trial court for rejecting the application, that the amendment would take away the effect of an admission contained in the plaint made by the plaintiff, was not absolutely correct, but that did not affect the fundamental requirement that the proposed amendment is necessary for effective adjudication upon the dispute between the parties.
Issues: Whether the trial court erred in rejecting the application for amendment of the plaint.
Ratio Decidendi: The courts are no doubt lenient in allowing the amendment to the pleadings at any stage of the suit, when such amendments are relevant and necessary for effective adjudication of the dispute between the parties. But the amendment of pleadings should not become a matter of hide and seek between the parties or an attempt to out-wit the opponent. In the present case, as the learned counsel for the petitioner himself contends, the effect of the statement made in para 3 of the plaint is in no way affected by the proposed amendment. If this is so then the proposed amendment is neither relevant nor necessary. The learned counsel for the petitioner has not been able to show how the proposed amendment is necessary for proper adjudication of the case.
Final Decision: The revision petition is dismissed as devoid of merit.
D. P. MOHAPATRA, J.
( 1 ) BEING aggrieved by the order dated 6-2-1982 of the Addl. Subordinate Judge, Cuttack in Title Suit No. 5 of 1978 rejecting her application for amendment of the plaint, the plaintiff has filed this application under S. 115, of the Civil P. C. challenging the said order.
( 2 ) THE petitioner filed the suit praying for a preliminary decree for her 1/12th share in Schedule 'b' and 1/4th share in Schedule 'b-l' and for specific allotment of the same, Para 3 of the plaint, which is relevant for the present purpose initially reads as follows : -"that the properties described in the Schedule 'b' of the plaint is the joint family immovable properties belonging to the branch of Harekrushna in which the share of Bidyadhar alias Budhi is 1/3rd and that of Jadu is 1/3rd and the remaining 1/3rd belongs to the branch of Padmanav. "separate written statements were filed on behalf of defendant No. 2, on behalf of defendant Nos. 1, 4, 5 and 6, on behalf of the defendant Nos. 12 to 23, on behalf of defendant No. 9 and on behalf of defendant No. 11. Defendant Nos. 1, 4, 5 and 6 in their written statement in paras 10 and 11, which are relevant for the purpose of the case stated as follows : - paragraph-10"that the averments made in para 3 of the plaint are to be proved by the plaintiff and these defendants do not want to comment on it. "paragraph-11"that the allegations made in para 4 of the plaint are false and baseless and as such they are denied. It is not correct to say that after the death of Bidyadhar alias Budhi on 1-9-1937 his 1/3rd interest in the Schedule 'b' property devolved upon his widow Subhadra and his son Ramchandra, defendant No, 1 and Subhadra died at a ripe old age of 78 years on 1-3-1974 and according to Hindu Succession Act 1956 her 8 annas interest in 1/3rd share of Bidyadhar in the Schedule 'b' property devolved upon defendant No. 1 and that the plaintiff and the defendant No. 1's share in Schedule 'b' property is 1/17th, in total 'b' Schedule property and that the plaintiff and defendant No. 1, were in joint possession of the 1/3rd share of late Bidyadhar alias Budhi without any partition by metes and bounds. As a matter of fact Bidyadhar was never called and known as Budhi and he was all along called and known as Bidyadhar, who died on 9-10-1936. At the time of death of Bidyadhar, the karta of the joint family was Harekrushna and the properties mentioned in Schedule 'b' is the self-acquired properties of said Harekrushna. "subsequently by order dated 8-2-1980 the trial Court permitted these defendants to correct the last sentence in the paragraph of the written statement quoted above substituting the words "ancestral coparcenary" in place of "self acquired. "
( 3 ) THE plaintiff-petitioner filed an application on 18-1-1982 before the trial court seeking to amend the plaint in the manner indicated below. Proposed amendment add the following below para 3 of the plaint. "that the schedule 'b' property is the separate property of late Harekrushna. " in the application it was stated that since defendant Nos. 1 4, 5 and 6 amended their written statement and stated that the schedule 'b' property is the ancestral coparcenary property of Harekrushna though they had previously stated that the schedule 'b' property is his self-acquired property, it is necessary to amend the plaint.
( 4 ) THE amendment was opposed on behalf of the contesting defendants mainly on the ground that it takes away the effect of the admission of the plaintiff that 'b' schedule properties are the joint family properties of late Harekrushna which she could not be permitted to do. This objection was accepted by the trial court and by the impugned order the petitioner's application for amendment of the plaint was rejected.
( 5 ) SRI R. K. Mohapatra, learned counsel for the petitioner contends that the trial court fell into an error in assuming that the proposed amendment takes away the effect of the admission, if any, of the plaintif
