SUDARSHAN MOHANTA Vs. GURUBARI

JUDGEMENT

(1.) IN this writ application under Articles 226 and 227 of the Constitution of India, the petitioners have prayed, inter alia, to quash the order dated 20.3.2010 passed by the learned Civil Judge (Jr. Division), Jajpur Road in Civil Suit No. 90 of 2008, whereby and whereunder, the learned trial court rejected the application of the petitioners for amendment of the plaint. The petitioners as plaintiffs laid a suit for declaration of right, title and interest over the suit schedule property and for permanent injunction against the defendants in the court of the learned Civil Judge (Jr. Division), Jajpur Road, which is registered as Civil Suit No. 90 of 2008. During pendency of the said suit, the petitioners filed an application under Order -6, Rule - 17 of the Code of Civil Procedure (in short 'the C.P.C.') for amendment of the plaint by incorporating certain facts. By way of amendment, the petitioners wanted to incorporate that in the year 1960, the then owner of the suit land, namely, Manjari Munda, to meet her legal necessity, alienated the suit schedule property to plaintiff No. 1 and his elder brother for a consideration of Rs. 1200/ - and delivered possession, but then sale deed could not be registered in favour of the vendees due to her personal problem. It is further stated that on 15.10.1965, the said Manjari Munda sold an area of Ac. 1.00 land from out of the suit schedule property to the plaintiff No. 1 and his brother by means of a registered sale deed bearing No. 6732. On 16.7.1966 she executed another registered sale deed bearing No. 4791 in favour of plaintiff No. 1 and his brother. It is further stated that by the time the registered sale deed was executed, there was no restriction under Section 22 of the Orissa Land Reforms Act to transfer the land.

(2.) THE opposite parties -defendants filed objection to the said petition stating therein that the proposed amendment would change the nature and character of the suit and it would constitute a new cause of action. The learned trial court rejected the application holding, inter alia, that hearing of the suit has already begun. The learned trial court further held that issues have been settled and no witnesses have been examined. The learned trial court further came to hold that the proposed amendment will materially alter the facts of the case and also substitute one cause of action with another.

(3.) ORDER 6, Rule 17 C.P.C. postulates as follows: -