PADMINI BEHERA AND OTHERS Vs. JAMUNA DEI

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India, the petitioners assail the order dated 12.7.2007 passed by the learned Civil Judge (Sr.Division), Jajpur in T.S.No.191 of 1998. By the said order, the learned trial court rejected the application for amendment of plaint filed under Order 6 Rule 17 C.P.C.

(2.) Sans detail, the short facts of the case of the petitioners are that one Punananda Behera was the absolute owner of the suit property. He died leaving behind his widow-Sundari and a son, namely, Sukanta. Sukanta was suffering from Leprosy and left the village in 1954. He, being unheard of for more than the statutory period, met the civil death, as a result of which, his mother Sundari became the exclusive owner of the suit property. Sundari executed one Will on 18.8.1964 in favour of one Maheswar Behera, predecessor in interest of the petitioners. She died on 12.1.1972. Sukanta died in the year 1971. For grant of letters of administration, Maheswar Behera filed an application under Section 278 of the Indian Succession Act in the court of the learned District Judge, Cuttack, which was registered as Misc.Case No.17 of 1994. The same was subsequently transferred to the learned Civil Judge (Sr.Division), Jajpur and renumbered as T.S.No.191 of 1998. The opposite party lodged a caveat and contended that the testator had no right, title and interest over the suit schedule property. She had no legal authority to execute the Will. The assertion of the plaintiff that Sukanta died in the year 1971 has not been disputed by the defendant. During pendency of the suit, the original plaintiff died, whereafter the petitioners, who are legal representatives of the plaintiff, have been substituted. After conclusion of the trial when the case was posted for argument, the plaintiffs filed an application under Order 6 Rule 17 C.P.C. for amendment of plaint to incorporate the plea that Sukanta died in the year 1961 and not 1971. The defendant filed an objection to the same. By order dated 12.7.2007, the trial court rejected the application holding that the same is a post trial amendment petition. Elaborate evidence for and against the year of death of Sukanta is there and the proposed amendment would cause serious prejudice to the defendant.

(3.) Heard Mr.Mahadev Mishra, learned Senior Counsel for the petitioners and Mr.S.Mishra, learned Counsel for the opposite party.