SARAT CHANDRA PANDA Vs. NARSINGH @ NRUSHING CHARAN PARAMGURU

JUDGEMENT

(1.) The writ petition is directed against the order dated 19.9.2009 passed by the learned Civil Judge (Junior Division), Bhubaneswar in C.S. No. 122 of 2004 allowing the petition under Order-6, Rule-17 of C.P.C. filed by the opposite party.

(2.) The petitioners are the defendants and the opposite party is the plaintiff in the aforesaid suit. The suit was filed with prayer to restrain the defendants from taking possession of the suit land forcibly and from changing the nature and character thereof. In their W.S. the defendants, inter alia, pleaded that they had purchased the suit land from the father of the plaintiff through registered sale deed Nos. 5575, 5576 and 5577 dated 8.8.1977. They also took the plea that after purchase of the land, they possessed and constructed a boundary wall over the same. On 2.3.2009, plaintiff filed the petition under Order-6, Rule-17 of C.P.C. seeking amendment of the plaint by inserting the prayer for declaration that the aforesaid registered sale deeds were void ab-initio and inoperative and by enhancing the valuation of the suit from Rs. 100/- to Rs. 600/-. The defendants filed objection to it. After going through the petition under Order-6, Rule-17 of C.P.C. and the objection thereto and hearing the counsel for the parties, the trial Court allowed the amendment sought for with cost of Rs. 100/- to be paid by the plaintiff to the defendants. Being aggrieved with the said order, defendants have preferred the present writ petition.

(3.) Learned Counsel appearing for the petitioners submitted that, while passing the impugned order, the trial Court failed to distinguish between voidable contract and void agreement. Opposite party specifically pleaded in paragraph-6 of his plaint that the story of transfer of the suit land by father of the plaintiff during his life time in any manner whatsoever is completely a cock and bull story having no foundation at all and if at all any document in respect of transfer of the suit land is available with any body including the defendants (petitioners) that must be a forged document and sham one. When the opposite party admitted that the documents were forged, the same are voidable documents which are valid and operative till they are declared void by competent Court of law. In support of his submission, he relied on the decisions Smt. Ketaki Sahoo and Ors. v. Smt. Laxmi Devi and Ors., 1994 2 OrissaLR 283 and Bhukan Sahu v. Bharat Chandra Sahu and Ors.,1988 2 OrissaLR 191 where it has been held by this Court that a void transaction is non-est in the eyes of law and in the case of voidable instrument, it remains good unless it is set aside by the competent Court. Learned Counsel for the petitioners further submitted that the period of limitation for declaring the forgery of an instrument is three years from the date when the issue or registration becomes known to the plaintiff, as envisaged under Article-56 of the limitation Act. In the case at hand, since the aforesaid sale deeds were executed in the year 1,977, the opp. party (plaintiff) could not have legally filed a suit in the year 2009, when the amendment petition was filed for declaration of those documents to be void, because of bar under Article-56 of the limitation Act.