MURALIDHAR PRADHAN Vs. HAREKRUSHNA SETH

JUDGEMENT

(1.) THIS Writ Petition has been filed by the petitioner challenging the order dated 07.8.2013 passed by the learned Civil Judge (Senior Division), Sambalpur in C.S. No. 33 of 2012 rejecting the application filed under Order 6, Rule 17 of C.P.C. for amendment of the written statement. The facts leading to the present case are that the opposite party as plaintiff filed C.S. No. 33 of 2012 before the learned Civil Judge (Senior Division), Sambalpur for declaration of right, title and interest and for permanent injunction. The plaintiff in the plaint inter alia stated that one Dura @ Draupadi Beherani, W/o. late Nabi Behera was the original owner of the suit Schedule -A property. The said Dura @ Draupadi Beherani gifted the Schedule -A property to one Nanku Pradhan, who did not deliver possession and both of them were in possession of the suit land. Thereafter Dura @ Draupadi Beherani and Nanku Pradhan executed Registered Sale Deed No. 934 dated 06.3.1964 in favour of the father of the plaintiff and since the date of execution, his father was in peaceful possession of the suit land.

(2.) LEARNED counsel appearing for the petitioner submitted that the proposed amendment of the written statement is necessary for effective adjudication of the dispute and to avoid multiplicity of litigation, as such the impugned order need be interfered with. He further submitted that the petitioner by way of amendment of the written statement wants to correct some names and the same will not change the nature and character of the suit.

(3.) ADMITTEDLY the suit is of the year 2012. The evidence on the side of the plaintiff has already been closed. The defendant had cross -examined P.Ws, 1, 2 and 3. The petitioner at the time of filing of the written statement could have brought the facts. The petitioner has also failed to explain that in spite of due diligence he could not able to file the application for amendment before commencement of trial. Law is well settled that while considering the application for amendment the court has to see whether the amendment is necessary to decide the real controversy, whether no prejudice or injustice caused to other party and whether the application for amendment is bona fide or mala fide. As general rule the court should decline amendment if admission made in the pleadings particularly in the plaint sought to be omitted or get rid off as held by the Apex Court in the case of Usha Balashaheb Swami and others v. Kiran Appaso Swami and others reported in 2007 (II) OLR (SC) 169. The Apex Court further held that a prayer for amendment of the plaint and prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counter part in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable.