BIJAYA KUMAR JENA Vs. BINAPANI JETHI ALIAS BARIK

JUDGEMENT

(1.) DEFENDANTS 1 to 3 have filed this writ application challenging the order dated 27.9.2004 passed by the Learned Adhoc Additional District Judge, Fast Track Court No. II, Cuttack in T.S. No. 146 of 2001 rejecting one of the applications filed for amendment of the written statement. From the impugned order it appears that two applications were filed for amendment of the written statement i.e. on 29.7.2004 and 1.9.2004 respectively. The first application for amendment filed on 29.7.2004 was allowed and the second application filed on 1.9.2004 was rejected.

(2.) THE suit has been filed for partition of the suit properties described in the Schedule 'B' and the Plaintiff claims 1/4th share in the said schedule properties. The other prayer in the suit is for delivery of possession of the share that may be allowed to the Plaintiff through process of Court. The case of the Plaintiff is that she is the daughter of Dijabar Jethi and Defendants 1 and 2 are sons of said Dijabar Jethi. Their father died in the year 1983 leaving behind his widow, Plaintiff and the Defendants 1 and 2. It is also the case of the Plaintiff that Dija Jethi inherited vast landed properties in Cuttack town which were agricultural and lying follow. Dija Jethi could not earn enough from the said properties and started a business in vending fruits and out of the income from the said business he also purchased some agricultural lands outside Cuttack town. The Plaintiff got married in a poor family for which her father Dija Jethi used to help her throughout his lifetime. However, after death of Dija Jethi, the two sons did not keep relationship with her and deprived her of all rights over the properties. Accordingly, the suit was filed for partition. - -

(3.) LEARNED Counsel for the petitioner submitted that the proposed amendment in no way changes the nature and character of the suit properties. According to the Learned Counsel the proposed amendment is an alternate plea taken and therefore should not have been rejected. Reliance is placed by the Learned Counsel for the petitioner on a decision of the Apex Court in the case of Darshan Singh and Ors. v. Gujjar Singh dead by L.Rs. and Ors. reported in : [2002]1SCR91 . Learned Counsel appearing for the Plaintiff -opp party, on the other hand, submitted that in the written statement the Defendants having admitted the claim of the Plaintiff for a share in the suit properties and there being no averment in the entire written statement of the effect that the Plaintiff is not in possession of her share, the proposed amendment would change the nature and character of the suit. Learned Counsel also relied upon a decision of the Apex Court in the case of Modi Spinning and Weaving Mills Co. Ltd. and Anr. v. Ladha Ram and Co. reported in : [1977]1SCR728 and another decision of the Apex Court in the case of Haji Mohammed Ishaq Wd. S.K. Mohammed and Ors. V. Mohammed Iqbal and Mohamed Ali and Co. reported in : [1978]3SCR571 .