PRAKASH CHANDRA MAHARANA Vs. STATE OF ORISSA

JUDGEMENT

(1.) PETITIONERS are the legal heirs of the original plaintiff Nilamani Moharana, have filed this application assailing the orders dated 09.01.2006 and 22.01.2009 passed by the learned Civil Judge (Sr. Division), Nimapara in Title Suit No. 323/5 of 2000/1999 under Annexures -1 and 3 respectively rejecting the petition under Order -6, Rule -17 of the C.P.C. The short fact of the case in hand is that after the death of original plaintiff, Nilamani Moharana his legal heirs, the present petitioners have filed the suit T.S. No. 323/5 of 2000/1999 before the court of the learned Civil Judge (Sr. Division), Nimapara for declaration, that the plaintiff are owner in peaceful possession of the case land and for permanent injunction. During pendency of the said suit, the plaintiffs have filed a petition on 16.02.2008 and on 28.08.2008 under Order -6, Rule -17 of the C.P.C. seeking for amendment of the plaint. By way of an amendment, the plaintiff -petitioners wanted to introduce the factum of compliance of suit notice under Section 80 of the C.P.C. and to introduce the fact that the ancestral land of the plaintiff has been damaged due to super cyclone and it has been wrongly recorded in the name of the State. In the second petition, the plaintiff wanted to introduce the same fact regarding issue of notice under Section 80 of the C.P.C. and damage of the land and also prayed for amendment that in case the occupancy right of the plaintiff over the suit land fails to be proved, adverse possession be declared. The said petition was rejected vide order dated 09.01.2006 under Annexure -1 on the ground that the petitioner has prayed this court at a belated stage on expiry of ten years of institution of the suit and further that the plaintiff claimed title over the suit land based upon 'hatapatta' issued by ex -land lord who inducted the forefather of the plaintiff as tenant. Therefore, the plea of adverse possession will change the nature and character of the suit. As regards issue of notice under Section 80 of the C.P.C., which is a matter of record and therefore there is no necessity to amend the plaint on that respect.

(2.) THE plaintiff -petitioner again filed application seeking for amendment under Order -6, Rule -17 of the C.P.C. vide Annexure -2 on 06.01.2009 to incorporate the following facts: -

(3.) MR . S.K. Mishra, learned counsel for the petitioners states that the delay by itself cannot be a ground to reject the petition for amendment when the proposed amendment is walking injustice to the other side and the amendment is necessary for the purpose of determining the real question of controversy between the parties and delay if any in filing the amendment petition, that can be compensated by cost. It is further stated that since there is pleadings available with regard to plea of adverse possession in paragraph -5 of the plaint, the alternative relief for adverse possession by way of amendment is permissible. He relies upon the judgment of this Court in Shri Shri Kashi Biswanath Dev represented by Laxmidhar alias Lakhan Jena v. Paramananda Routrai and others, : 1985 (I) OLR 256 and the judgment of the apex Court in Arjun Singh v. Mohindra Kumar and others, : AIR 1964 SC 993.