JUDGMENT :

A.K. Rath, J.

By this application under Article 227 of the Constitution, the petitioner seeks to quash the order dated 22.12.2007 passed by the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack in C.S. No.301 of 2003. By the said order, learned trial court rejected the application for amendment of plaint under Order 6 Rule 17, C.P.C.

2. The petitioner as the plaintiff laid a suit for declaration of right, title and interest, confirmation of possession and perpetual injunction restraining the defendants not to disturb the possession of the plaintiff in the court of the learned 2nd Additional Civil Judge (Sr. Divn.), Cuttack, which is registered as C.S. No.301 of 2003. The case of the plaintiff is that the suit schedule-A property was the anabadi land of ex-landlord Late Motilal Pandit. The mother of the plaintiff Late Jharana Khuntia with oral permission of the ex-intermediary was in cultivating possession of ‘A’ schedule land through her husband Late Fakir Khuntia. On being approached by said Jharana, ex-landlord executed an unregistered permanent lease deed for agricultural and horticultural purposes by accepting salami. She was also recognized as a tenant under the ex-intermediary, paid rent to the ex-landlord for several years and obtained rent receipts. During vesting of estate, the agent of the ex-landlord demanded illegal gratification for furnishing rent roll in respect of schedule-A property. Rent roll was not submitted since she did not succumb to the demand. The mother of the plaintiff was utilizing the above mentioned leasehold land for agricultural and horticultural purposes with the help of her husband and in course of time constructed a residential house on and over a portion of the said property and resided therein. While the matter stood thus, she learnt that the defendant had managed to get his name recorded in respect of the suit property in settlement record of rights. Fakir Khuntia expired in the year 1998. The lease deed in question was in custody of Late Fakir Khuntia and could not be produced before any authority. The defendant No.1 has never possessed the suit schedule land. Taking the advantage of wrong and fraudulent entry, he threatened to dispose the plaintiff forcibly from the suit schedule-A property.

3. Pursuant to issuance of summons, the defendant no.1 entered appearance and filed a written statement denying the assertions made in the plaint. He neither admits that the plaintiff is the son of Fakir Khuntia nor Jharana Dei was the wife of Fakir Khuntia. He also did not admit the genuineness of the unregistered lease deed. It is stated that the adjoining west of the suit land, Hal Plot No.2092 situates. The same belongs to Cuttack Municipality. Rabindra Khuntia and Chhabindra Khuntia forcibly raised a hut over the said plot in the year 1988. They filed T.S. No.49 of 1997 for declaration of right, title and interest through their wives. It is further stated that the suit schedule property along with other adjacent plots was acquired by his father from the Pandit’s Estate by means of registered Permanent Lease deed dated 7.1.1941.

4. While the matter stood thus, after closure of evidence, the plaintiff filed an application for amendment of the plaint on the ground that while preparing for argument it came to the notice that though the plaintiff has alleged about the illegalities by the settlement authorities, but has not furnished the detail particulars of the same. In the meantime, the plaintiff had collected the certified copies of Yadast and other records from the settlement authority. It was found that the fraud was practised by the defendants at the time of preparation of record. The same could not be incorporated in the plaint in the absence of the documents. The application was objected to by the defendant no.1 on the ground that the application for amendment was filed at the belated stage and in the event the same is allowed, it will lead to de novo trial of the suit. By order d