SULOCHANA DEI ALIAS SWAIN Vs. INDRAMANI SWAIN

JUDGEMENT

(1.) Both these revision applications have a common genesis and therefore, this judgment will govern them. By a common order, two applications were disposed of by the learned Additional Munsif, Kendrapara necessitating filing of two revision applications.

(2.) FACTUAL matrix as described by petitioners is as follows : - - The petitioners as plaintiffs filed a suit (T.S. No. 39 of 1985) in the Court of the learned Munsif, Kendrapara for declaration of title, confirmation of possession, eviction of defendant -opp. party from a thatched house standing on the suit land, delivery of possession and permanent injunction. Petitioner No. 1 Sulochana is daughter, and petitioner No. 2 is adopted son of one Brahmananda to whom land in question originally belonged. Brahmananda transferred the same to his wife Sundari in 194 land since then his wife was in possession of the same. After death of both Sundari and Brahmananda, plaintiffs were in possession of suit land. Defendant who was permitted to stay in a thatched house situated on a portion of suit land fraudulently managed to get a sale -deed dated 4 -11 -1981 executed by Brahmananda, who had no semblance of right, title and interest over suit land. Written statement was filed by defendant denying the allegations. While suit was at trial stage, land in question came under consolidation operation in terms of a notification Under Section 3 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short 'the Act') Defendant filed a petition for abatement of suit inter alia praying that disputes in question are to be adjudicated by consolidation authorities and Civil Court had no jurisdiction to deal with the matter. Objection was filed by plaintiffs to this petition. They also filed an application for amendment of plaint, to delete one of the existing prayers and to insert a prayer to the effect that sale -deed dated 4 -11 -1981 executed by Brahmananda in favour of defendant was Illegal, without consideration, and authority. By a common order, both the applications were disposed of. The learned Additional Munsif held that amendment as prayed for was not to be allowed since it aimed at making petition for abatement futile, and since defendant had filed an application for abatement earlier, valuable right had accrued in his favour.

(3.) POWERS of amendment vested in Court in terms of Order 6, Rule 17 of the Code of Civil Procedure, 1908 (in short 'the Code') are very wide. It is duty of concerned Court to allow amendment of pleading when same is necessary for facilitating determination of real questions in controversy. Main considerations to be borne in mind while dealing with prayer for amendment are advancement of interest of substantial justice, and avoidance of multiplicity of litigation. A liberal approach is intended since Courts exist to decide rights of the parties and not to punish them for mistakes they make in conduct of their cases. There are, however, two limitations on power of Court to allow amendment. It should not be allowed where it has effect of substituting one cause of action for another, or changing the subject matter of dispute. The other, is that an amendment should not ordinarily be allowed if it would deprive other side of a valuable right accrued by lapse of time, where, however, proposed amendment is in essence a different approach to the facts in existence, amendment is to be allowed. Coming to the facts of the case, without nullifying sale -deed executed by Brahmananda in favour of defendant, plaintiffs could not have succeeded on the existing prayers. Necessary factual averments were there and question of any valuable right having dvolved upon defendant did not arise. Authorities under the Act lack jurisdiction to deal with question of validity of a document. Civil Court alone can do that [See AIR 1973SC 2451: Goraka Nath Dube v. Hari Narain Singh and Ors. and 1988 (I) OLR 185 : Rama Chandra Bal and Anr. v. Suresh Chandra Nayak and Ors.] in a suit for partition, claim was dependent on validity of a sale - deed This Court held that if applied for, amendment of plaint was to be permitted. [See 1991 (1) OLR 13) : Santipriya Jena and Anr. v. Rebati Naik and Ors.]. Essence and substance of pleadings, and not form of pleadings, or prayer made is determinative of forum of adjudication. Refusal to accept prayer for amendment was improper. Consequentially, order directing abatement is to be vacated. Both the civil revisions are allowed, but without any order as to costs.