NAKUL BEHERA Vs. DAMODAR SWAIN TAHASILDAR BANKI

JUDGEMENT

(1.) Petitioners are defendants 1 to 3 in a suit filed by opposite party for declaration that he is the owner in possession of the disputed land, for delivery of possession in the event there is dispossession during the pendency of the suit, and for issue of permanent injunction with costs and consequential reliefs. Their prayer for amendment under O. 6, Rule 17, Code of Civil of Civil Procedure,1908 (in short 'the Code') having been refused, this petition has been filed.

(2.) A short reference to the factual aspect is necessary for disposal of this revision application. Plaintiff claimed that he was in possession of the disputed land on the basis of a lease granted in his favour by the Tahasildar, Banki (defendant No. 4 in the suit and pro forma opposite party in this revision application); the present petitioners have no right, title and interest over the disputed land and were trying to interfere with his possession, necessitating institution of the suit. The present petitioners filed a joint written statement inter alia taking the stand that the land in question was in their continuous possession since 1972-73 and they had applied for lease in respect thereof, which was pending consideration; encroachment cases were pending and the attempt of the plaintiff was to dispossess them and having failed in his illegal attempt filed the suit mala fide. The suit was filed on 23-4-1986 and was numbered as Title Suit No. 22 of 1986 in the Court of Munsif, Banki. Issues were framed and the trial began. The plaintiff has been examined. After examination of the plaintiff was over, the present petitioners sought to amend the written statement by taking the plea that the starting point of possession as stated to be 1972-73 was erroneous, and in reality it was 1952-53; the details of the encroachment cases instituted against them were necessary to be inserted to show their continued possession. The action was objected to by the plaintiff on the ground that the attempt of the defendants was to introduce a new case and cause of action, and their belated application would cause material prejudice to the plaintiff.

(3.) On consideration of the rival submissions, the learned Munsif by impugned order dated 9-1-1990 refused the prayer. He was of the view that the present petitioners were trying to build up a new case with a different approach which is totally inconsistent with the original pleadings and it would cause serious prejudice to the plaintiff' if the amendment sought for is allowed.