SK ZAHURAL ISLAM Vs. TANWEER JAHAN BEGUM

JUDGEMENT

(1.) In this civil revision under S. 115 of the Code of Civil Procedure (for short 'C.P.C.') the petitioner has challenged the order dated 17-1-2000 passed by Sri B. P. C. Pattnaik, Civil Judge (Senior Division) First Court, Cuttack in Title Suit No. 392 of 1997, allowing the prayer of the plaintiff for amendment of the plaint.

(2.) The petitioner is the defendant No. 2, the O.P. 1 is the plaintiff and the other opposite parties are defendants 1 3, 4, 5, 6, 7, 8, 9, 10 and 11 respectively in Title Suit No. 392 of 1997. The plaintiff prayed for partition of the suit properties and rendition of accounts of the Orissa Kohinoor Press (for short 'the press') left behind by late Aminul Islam who died on 10-8-1985, leaving behind the plaintiff and the defendants as his heirs. The defendant Nos. 2, 3 and 4 filed their written statement, inter alia, stating that the plaintiff had no substantial right to claim partition of the properties left by late Aminul Islam. According to them late Aminul Islam executed a registered 'Havanama' (gift deed) dated 9-2-1983 and gifted his right, title and ownership of the press in favour of defendant No. 2 and after that the defendant No. 2 became the owner of the press, invested money and carried on the business, the defendant Nos. 6, 7, 8 and 9 sold their respective shares by registered sale deed dated 14-8-1991 in favour of defendant Nos. 2, 3 and 4, their mother also gifted away her share of property in favour of defendant Nos. 2, 3 and 4 by a gift deed dated 20-6-1990 and late Sk. Aminul Islam had also executed a will on 10-11-1983 in favour of the defendants 2, 3 and 4 in respect of the properties recorded in his name under khata No. 323. After filing of the written statement by defendant Nos. 2, 3 and 4 the plaintiff prayed for amendment of the plaint seeking addition of a prayer to declare the gift deeds, will and sale deed as null and void which has been allowed in the impugned order after hearing the learned counsel for the parties and rejecting the contention of the defendants that the amendment will change the nature of the suit.

(3.) Mr. Misra, learned counsel for the petitioner and Mr. Ghosh, learned counsel for opposite party No. 1 were heard at length.