MOHAMMAD KHALIL Vs. SK. TAMIYUDDIN

JUDGEMENT

(1.) Assailing the order dated 11.1.2008 passed by the learned Adhoc Additional District Judge, F.T.C. No.IV, Cuttack in R.F.A. No.1 of 2006, the present petition is filed under Article 227 of the Constitution of India. By the said order, learned lower appellate court allowed the application for amendment of the plaint.

(2.) Sans details the short facts of the case are that the opposite party as plaintiff instituted T.S. No.516/1984 in the court of the learned Sub-Judge, 1st Court, Cuttack for declaration of right, title and interest and possession impleading the present petitioner and eleven others as defendants, which was subsequently transferred to the court of the learned 2nd Additional Civil Judge (S.D.), Cuttack,. In paragraph 8 of the plaint, it is averred that the defendant no.2 was divorced by her husband-Khalliquiddin on 8.8.83. The said date has been mentioned as cause of action in paragraph 12 of the plaint. During pendency of the suit, the plaintiff filed an application for amendment of the plaint. The same was allowed, whereafter the amended plaint was filed. In paragraph 8 of the amended plaint, the date has been changed from 8.8.83 to 3.8.83. Be it noted that the plaintiff has not sought for amendment of the date of divorce of defendant no.2. The suit was dismissed. Challenging the judgment and decree, the plaintiff filed an appeal being R.F.A. No.1 of 2006 in the court of the learned District Judge, Cuttack, which was subsequently transferred to the court of the learned Adhoc Additional District Judge, F.T.C. No.IV, Cuttack. In course of hearing of the appeal, the plaintiff filed an application under Order 6 Rule 17 C.P.C. to amend the plaint seeking to delete the date of divorce of defendant no.2 from 8.8.83 to 3.8.83. The contesting defendant filed an objection to the same.

(3.) Learned lower appellate court came to hold that the date of divorce of defendant no.2 by her husband has been mentioned as 8.8.1983 in the original plaint. A couple of time during pendency of the suit, the plaintiff has never sought for amendment of the date. It is further held that the plaintiff in the amended plaint as well as in the evidence on affidavit indicated the date as 3.3.08. There is no specific denial in the written statement filed by the defendants, nor any question was put to the plaintiff during his cross-examination. The defendant no.1 raised the same issue at the time of filing of the written note of argument for the first time. Had the same point been raised, the plaintiff would have got an opportunity to answer the same. Further the date "3.8.1983" has already been acted upon by the parties as well as by the learned trial court. The amendment sought for neither alters the very foundation of the claim, nor introduces a distinct and separate cause of action. Having held so, the learned lower appellate court allowed the application for amendment.