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ORISSA HIGH COURT
S. Panda, J.
Pramod Kumar Prusty & Ors. —Petitioners
versus
Aina Prusty (since dead) represented by her Legal Heirs and Ors. —Opp. Parties
W.P. (C) No. 9893 of 2010
Decided on 5.9.2014
(B) Civil Procedure Code, 1908—Order 6 Rule 17—Amendment of plaint—Parameters—Plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or nature of his claim has necessarily no counterpart in law relating to amendment of written statement—Adding a new ground of defence or substituting or altering a defence does not raise same problem as adding, altering or substituting a new cause of action—In case of amendment of written statement, Courts are inclined to be more liberal in allowing amendment of written statement than of plaint and question of prejudice is less likely to operate with same rigour in former than in latter case. (Para 4.1)
(C) Civil Procedure Code, 1908—Order 6 Rule 17—Amendment of plaint—Parameters—While considering application for amendment Court has to. see whether amendment is necessary to decide real controversy, whether no prejudice or injustice caused to other party and whether application for amendment is bona fide or mala fide—As a general rule Court should decline amendment if admission made in pleadings particularly in plaint sought to be omitted or get rid off—General principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or nature of claim applies to amendments to plaint—It has no counterpart in principles relating to amendment of written statement—Addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in written statement would not be objectionable while adding, altering or substituting a new cause of action in plaint may be objectionable. (Para 5)
(D) Civil Procedure Code, 1908—Order 6 Rule 17—Amendment of plaint—Suit for partition and permanent injunction—Court below erred in law in allowing application for amendment of plaint filed by plaintiff on observation that proposed amendment is very formal in nature and it will not change nature and character of suit in any manner ignoring fact that status of defendant who was adopted by plaintiff sought to be withdrawn which is not permissible—Application of plaintiffs for grant of temporary injunction was rejected by Court below and amendment for joint possession is liable to be rejected—Impugned order set aside. (Paras 6 and 7)
Result: Writ Petition allowed.
S. Panda, J.—This Writ Petition has been filed by the petitioners challenging the order dated 11.5.2010 passed by the learned Addl. Civil Judge (Senior Division). Puri in C.S.No. 92/136 of 2010/2009 allowing the application filed under Order 6. Rule 17 of C. P.C. for amendment of the plaint.
2. The facts leading to the present case are that opp. party Nos.1 to 8 are plaintiffs filed C.S. No. 92/136 of 2010/2009 before the learned Civil Judge (Senior Division), Puri for partition and permanent injunction in respect of the disputed land described in Schedules A and B of the plaint. The plaintiffs in the plaint inter alia alleged that they are in possession of the land for more than the prescribed period as such they have perfected title thereto though the Record of Rights stand in the name of one Janha Bewa. the mother of defendant No.1. who was allotted with a share in a family partition in the year 1930. The plaintiffs also challenged the Sale Deed executed by defendant No.1 in favour of other defendants. .
2.1 After receiving notice, the petitioners who are defendant Nos. 1 to 8 appeared in the suit and filed their written statement traversing the allegations made by the plaintiffs. They have specifically taken a stand that in the year 1933 a family partition was made and the properties were partition between Banchha Prusty, Niladri Prusty and Dama Prusty, who were the sons of Kanhei Prusty. Bancha died leaving Mohan Prusty, the adopted father of defendant No.1 and husband of Janha Bewa. Niladri, Dama and Mohan were allotted with Ac. 4.60. Ac. 4.568 and Ac. 4.522 decimals respectively and they were in peaceful possession over the said land since then. It was further stated that Dama and Niladri died issueless. The land allotted to them devolved on Mohan as their successor and Mohan being the exclusive owner was in possession of the properties. After death of Mohan, his widow Janha and defendant No. 1 were in possession of the suit properties. After death of Janha, defendant No.1 continued to possess the suit properties. The plaintiffs are successor-in-interest of Satyabadi Prusty and they were in separate possession of the land. It is also stated that defendant No.1 and Janha have filed O.S. No. 116/72 of 1972/1966 against the ancestors of the plaintiffs and others for partition, which was dismissed in view of the earlier partition of the year 1933. Thereafter First Appeal No. 115 of 1973 was preferred before this Court, which was also dismissed on 27.11.1984 confirming the judgment and decree passed by the Trial Court. In the said suit the Trial Court vide its judgment dated 24.2.1973 at paragraph-7 specifically recorded a finding that the witnesses have deposed in support of such adoption but the contesting defendants in their written statement have mentioned that present plaintiff No.2 is the adopted son of Mohan Prusty. So necessarily it is held that said adoption is true and plaintiff No.2 is the son of Mohan Prusty on adoption.
2.2 While matter stood thus, the present plaintiffs filed I.A No. 252 of 2009 under Order 39, Rules 1 and 2 of C.P.C. for ad interim injunction stating that they have perfected title to the suit lands though adverse possession against defendant No.1 and his mother Janha Bewa. The petitioners also filed an application under Order 39, Rules 1 and 2 of C.P.C., which was registered as I.A.No. 254 of 2009. The trial Court by common order dated 30.11.2009 while allowing the application for injunction filed by the petitioners rejected the application of the plaintiffs. Being aggrieved the plaintiffs preferred F.A.O.Nos. 107 and 108 of 2009 before the learned District Judge, Puri. The lower Appellate Court directed the parties to maintain status quo over the suit land till disposal of the suit. However, the said order of the lower Appellate Court was challenged before this Court: In course of hearing, the parties have admitted about status quo order over the suit land. Accordingly, the Writ Pet
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