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2008 Supreme(Ori) 826
IN THE HIGH COURT OF ORISSA
Sanju Panda, J.
SK. AISNULLAH ` SK. AHESNULLAH AND OTHERS - APPELLANT
Versus
HASRTUN KHATUN AND OTHERS - RESPONDENT
Writ Petition (C) Nos. 1635 of 2003 and 8434 of 2005
Decided On : 02-09-2008
S.P. Mishra, S. Dash, S. Mishra, S. Nanda, S. Satpathi and B. Satpati, for the Appellant; Srinivas Mishra-2, S. Mantry, A.K. Mishra, A.K. Sharma, M.K. Dash, R.N. Prusty and P.K. Dash for Opp. Parties 1 to 8, for the Respondent
The main legal point established is that the Amendment Act, 2002 of the CPC applied to pending cases, allowing for amendments that serve the interest of justice and do not change the nature and character of the suit property.
Headnote:
Amendment - Civil Procedure - CPC Amendment Act, 2002 - 2002 CPC Amendment Act
Fact of the Case:
The Plaintiffs filed a suit for partition and sought to amend the plaint to include new properties. The trial court rejected the amendment application, but the higher court allowed it. The Defendant-Petitioner challenged the order.
Finding of the Court:
The court found that the Amendment Act, 2002 of the CPC applied to pending cases, allowing for the inclusion of properties in the schedule of the plaint. The court held that the amendment would not change the nature and character of the suit property and would serve the interest of justice.
Issues: The main issue was whether the amendment to include new properties in the schedule of the plaint would change the nature and character of the suit, and whether the Amendment Act, 2002 applied to the pending case.
Ratio Decidendi: The court relied on the provisions of the Amendment Act, 2002 of the CPC and legal precedents to allow the amendment, emphasizing that it would not alter the nature and character of the suit property and would prevent multiplicity of proceedings.
Final Decision: W.P.(C) No. 8434 of 2005 was allowed, setting aside the trial court's order and permitting the Plaintiffs to amend the plaint. W.P.(C) No. 1635 of 2003 was allowed in part.
JUDGMENT :
Sanju Panda, J. - Since in both the writ petitions common questions are involved, they were heard together and are being disposed of by this common judgment.
2. In Writ Petition No. 1635 of 2003 challenge has been made to the order dated 13.11.2002 passed by the learned Ad hoc Addl. District Judge, Fast Track Court, Balasore in Civil Revision No. 6 of 2001 allowing the amendment by setting aside the order dated 21.10.2000 passed by the learned Addl. Civil Judge (Senior Division), Balasore in O.S. No. 85 of 1980 rejecting the amendment application. In W.P.(C) No. 8434 of 2005 challenge has been made to the order dated 21.10.2000 passed by the learned Addl. Civil Judge (Senior Division), Balasore in F.D. No. 85 of 1980-I rejecting the amendment application.
3. The facts leading to filing these cases are as follows:
Opposite parties 1 and 2 in W.P.(C) No. 1635 of 2003 as the Plaintiffs filed the suit for partition and a preliminarily ex parte decree was passed on 26.4.1984 against the Defendant No. 1 Petitioner and proforma opposite parties 3 to 9 declaring l/9th share of each of the Plaintiffs in 'Kha' and 'Ga' Schedule properties. Thereafter, the Plaintiffs filed the final decree proceeding. While the final decree proceeding was continuing, on 25.2.1994 they filed an application for amendment of the plaint and the Defendant No. 1 Petitioner filed an objection thereto on the ground that it would change the nature and character of the suit and prolong the proceeding. The learned Addl. Civil Judge by order dated 21.10.2000 rejected the application for amendment.of the plaint on the ground that the Plaintiffs filed the suit on 23.4.1980 and by way of amendment they wanted to include some new properties in the schedule of properties. If Plaintiffs would be allowed to include those properties in the plaint, it would change the nature and character of the suit and Defendants would be prejudiced. The Plaintiffs filed a civil revision against the said order. The learned Ad hoc Add!. District Judge by his order dated 13.11.2002, allowed the revision and permitted the Plaintiffs to amend the plaint. The Defendant-Petitioner has filed this writ petition challenging the order dated 13.11.2002.
However, when the Plaintiffs came to know that the civil revision was not maintainable, on 4.7.2005 they filed W.P.(C) No. 8434 of 2005 against the said order dated 21.10.2000 passed by the trial court.
4. The Learned Counsel appearing for the Petitioners submitted that the Amendment Act, 2002 of the CPC came into force on 1.7.2002. Therefore, after the amendment, the civil revision was not maintainable and as the civil revision was pending before the learned Addl. Civil Judge (Senior Division), Balasore, the Amendment Act, 2002 was applicable to such pending cases. Therefore, the impugned order is liable to be quashed. If the amendment would be allowed at the stage of final decree proceeding, Defendants would be prejudiced and they would face a prolonged trial and it would also lead to de novo trial.
5. The Learned Counsel appearing for the opposite parties submitted that after the Amendment Act, 2002 came into force, the amended provisions became applicable to the pending cases. He further stated that some of the properties were not included in the plaint schedule and when it came to the knowledge of the Plaintiffs that some of the properties were left, immediately they filed the application for amendment and the learned Addl. Civil Judge though took into consideration the said fact, on a misconception came to a finding that the amendment would change the nature and character of the suit. Since this is a partition suit and by way of amendment the Plaintiffs wanted to include some properties in the schedule of the plaint and the said amendment would not change the nature and character of the suit property and for the interest of justice and to avoid multiplicity of proceedings, the amendment should have been allowed and the Defendants could be co
