MAHENDRA MEHETA Vs. AMARESH SARKAR

JUDGEMENT

(1.) The plaintiffs-petitioners challenge the order dated 17-8-1989 of the Sub-Judge, Cuttack passed in Title Suit No. 28 of 1984.

(2.) The suit was filed for specific performance of contract which was numbered at Title Suit No. 28 of 1984. In the written statement filed by the defendant, the defendant admitted the execution of the agreement of the contract, but took the specific plea that the contract was subsequently rescinded. After the evidence was closed and the case was fixed for argument, the defendant filed an application to amend the written statement to insert the date of recision of the contract and also prayed for some other formal amendments. The learned trial court after considering the prayer for amendment, came to the conclusion that it is necessary for proper adjudication and shall not change the nature and character of the suit.

(3.) The learned advocate for the petitioners submits that since the amendment which is sought for has been prayed only with the intention to fit with the evidence already adduced, such prayer should not be granted. The learned advocate further submits that at this belated stage the amendment of the written statement should not be granted and it shall also change the nature of the suit. For the above submission, the learned Advocate for the petitioners relies on the decisions reported in AIR 1967 Orissa 58 ((1967) 33 Cut LT 65) (Khali v. Sadhaba Bewa), AIR 1953 Cal 15 : ((1952) 89 Cal LJ 140) (Nrisingh Prasad Paul v. Steel Products Ltd.), AIR 1949 Ajmer 19 (Beni Pershad Bhargava v. Narayan Glass Works, Makhanpur), 1971 (2) C.W. R 1004 (Jhara Dasiani v. Magata Das), AIR 1950 Mad 32 : ((1949) 2 MLJ 421), (Bhagavatula Gopalakrishnamurthi v. Dhulipalla Sreedhara Rao), AIR 1930 PC 57 (1) : (58 MLJ 7) (Siddik Mahomed Shah v. Mt. Saran ) and (1983) 55 Cut LT 219 (Hindustan Commercial Corporation, Cuttack v. Bank of Baroda, Cuttack.)