JAYANTA KUMAR SAHU Vs. LAXMIDHAR SAHU

JUDGEMENT

(1.) THE present Petitioner being the Plaintiff instituted a suit i.e. Civil Suit No. 5 of the year, 2010 for injunction simplicitor in the Court of Learned Civil Judge (Jr. Divn.), Keonjhar. The Defendant in the said suit who is the father of the present Petitioner is the Opp. Party in this Writ Petition. In the said suit the present Opp. Party entered appearance and filed his written statement -cum -counter claim praying therein for restraining the present Petitioner permanently from entering into the suit schedule land except the old house standing over 3370 Sq.ft. of land where the present Opp. Party claims to be residing. It is also prayed in the counter claim to restrain the present Petitioner from making any new construction over the suit schedule land. The present Petitioner filed his written statement to the counter claim of the Defendant in the said suit. It is the present Petitioner who as Plaintiff in the Court below filed a petition under Order 5, Rule 17 of the Civil Procedure Code (hereinafter referred to as "C.P.C.") for incorporating certain amendments to the plaint. Objection was flied from the side of the Defendant with regard to the amendment as has been prayed for by the Plaintiff -Petitioner. The prayer for amendment of the plaint was disallowed by the Civil Judge (Jr. Divn.), Keonjhar by his impugned Order Dated 28.2.2011 i.e. Annexure -6. The Plaintiff being aggrieved with the said order of rejection of his prayer for amending the plaint has approached this Court for quashing the impugned order at Annexure 5.

(2.) I have heard the Learned Counsel appearing for the Petitioner as well as the Opp. Party. I have gone through the pleadings of the respective parties as well as the impugned order as at Annexure -6. The admitted fact which emerges is that it is the Opp. Party the father of the Petitioner, is the owner of the suit property. Though the Plaintiff -Petitioner claims that the said suit was acquired by the Opp. Party -Defendant from out of the joint family fund, it is also an admitted fact that in the mutation proceeding the suit land has been recorded in the name of the present Opp. Party. It is also admitted by the Plaintiff Petitioner that the Opp. Party -Defendant remains in one of the room of the suit house.

(3.) ADMITTEDLY , the parties have not yet adduced evidence in the suit in question. In the written statement -cum -counter claim the present Opp. Party -Defendant has asserted that he constructed the house over the suit land and is residing there since 1990 which is his self acquired property and is never the joint family property Jayanta Kumar Sahu Vs. Laxmidhar Sahu nor the property of the Plaintiff. But he has also admitted in his counter claim in Para -7 that the Plaintiff -Petitioner wanted to live separately from him and other family members and therefore he forced the Opp. Party for partition. In his written statement to the counter claim of the Defendant, the present Petitioner as Plaintiff though admitted that the suit property was acquired by the Defendant -Opp. Party; but when the family expanded and because of old age the Defendant -Opp. Party was unable to bear the educational expenses of his sons and other house -hold expenses, he took over the management of the house and started his career as helper and became a driver later on and acquired trucks and his wife also acquired some vehicles. But the Defendant -Opp. Party on the ill -advice of some inimical person of him started creating problems for which an agreement in the year 2009 was entered into in between the parties.