SAKHI DEI Vs. BANAMALI SAHU AND ORS.

JUDGEMENT

(1.) WHILE Petitioner submits that Court has ample jurisdiction to allow an amendment of the schedule appended to the plaint, even after preliminary decree is passed in a suit for partition, some of the opp. parties submit that such a course though available to be adopted in rare cases, is not to be so done in the case at hand.

(2.) A brief reference to the factual aspects would suffice. Original Plaintiff Sakhi Dei had filed the suit for partition of properties described in the schedule appended to the plaint claiming her husband's 1/4th share and other reliefs. According to her, present opp. parties 1 to 9 are co -sharers of original Plaintiff's husband and hail from common ancestor. Opp. parties 10 to 17 are successors of a stranger purchaser of some of the properties who was originally arrayed and Defendant No.9. Plaintiffs stand was to the effect that after her marriage, her husband left the house and was unheard of. Taking advantage of this situation, her husband's co -sharers sold away the entire property described in lot No. 1 of the schedule without her consent to the stranger purchaser, original Defendant No. 9. A preliminary decree was passed in the suit On 11.3.1970 and Plaintiff's prayer for partition of 1/4th share was accepted and sale effected in respect of said 1/4th share was declared to be void, and it was declared that original Plaintiff was entitled to get 1/4th share from the properties alienated to original Defendant No. 9, After the suit was decreed preliminary, an application for appointment of Commissioner for separate allotment of 1/4th share of properties was filed in order to facilitate drawing up of final decree. A Commissioner was appointed to allot share of original Plaintiff as per preliminary decree. He submitted report on 7.4.1990. Accordingly, final decree was drawn up on 29.4.1990. At that stage one of the legal representatives of original Defendant No. 9 filed a misc. case under Order 9, Rule 13 of the Code of Civil Procedure, 1908 (in short, 'Code of Civil Procedure') to set aside the final decree drawn up ex parte, but the same was rejected. However, this Court set aside the final decree drawn up ex parte. An objection was filed to the report of the Commissioner. At the time of cross -examination of the Commissioner, according to Plaintiff, it was noticed that two plot measuring A0.01 decimal each of Khata No. 360 mentioned in lot No. 5 were wrongly described. The correct plot number were 346 and 347 and not 436 and 437 as written. An application was therefore, filed under Order 6, Rule 17 read with Section 152 and 153 of the Code of Civil Procedure, 1908 (in short, 'Code of Civil Procedure') to make necessary correction. Prayer to make substitution of correct figures having been rejected, this revision application has been filed. Learned Civil Judge (Senior Division), Second Court, Cuttack was of the view that delayed approach to change plot numbers would reopen the entire matter after long passage of time and it would necessarily involve almost a re -trial. For coming to such conclusion reliance was placed on a decision of this Court in Sajani Bewa and Anr. v. Kartik Sahu and Ors. : 52 (1981) C.L.T. 9.

(3.) THERE is no dispute, on the other hand it is fairly conceded that Court has jurisdiction to allow amendment of the description of properties even after preliminary decree is passed. Section 153, Code of Civil Procedure permits amendment of any defect or error in any proceeding or in a suit and such amendments are to be made for the purpose of determining real question or issue raised by or depending on such proceeding. Logic behind this provision appears to be that so long the Court is in seisin of the proceeding it is competent to amend the pleading provided it does not cause injustice to the other side. Object is to minimise litigation and avoid multiplicity of proceedings. Rules of procedure are intended to be handmaid of administration of justice. A party cannot be refused justice merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. Prayer to amend the pleadings has to be liberally accepted unless Court is satisfied that party applying was acting mala fide or that mistake has caused injury to his opponent, which cannot be compensated for by an order of cost. As observed by apex Court in Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon : AIR 1969 SC 1267, however negligent or careless may have been the first omission, and however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. What appears to have weighed with this Court in Sajani Bewa's case (supra) from paragraph 3 of judgment is that new properties were sought to be introduced to the hotchpot. In that case, higher share was claimed with regard to new property. The same is not the case here, What has been intended is to make correction of plot numbers. It is the case of Petitioner that figures '4' and '3' were interchanged by mistake and it would not change nature and character of the same. This appears to be a case of genuine mistake. The Court below has not acted properly in refusing prayer for amendment. The impugned order is set aside. It goes without saying that by long passage of time and prolongation of litigation, inconvenience has been caused to the opp. parties and their inconvenience can be mitigated by cost, which I assess at Rs. 500/ - to be paid within two months from today to the learned Counsel appearing for opp. parties 1 and 10 to 17. If the amount is paid within the stipulated time, this order shall operate, otherwise not.