CORRITTMORAN AND COMPANY PRIVATE LIMITED REPRESENTED THROUGH ITS POWER OF ATTORNEY T.A.KRISHNAMOORTHY Vs. SUBIR CHANDRA BOSE

JUDGEMENT

(1.) THIS writ application is directed against the order dated 12.4.2005 by the learned Civil Judge (Senior Division), Puri in T.S. No.30 of 1997 allowing an application filed by the plaintiff for amendment of the plaint under Order 6, Rule 17 C.P.C. The plaintiff opposite party No.1 had filed the suit for eviction of the defendant -petitioner from the suit schedule property and also claimed mense profits and damages. The schedule of the disputed property having not been described properly, an application for amendment of the same was filed. The proposed amendment was objected to by the defendant -petitioner on the ground that the properties having not been described properly in the suit, no decree could be passed and a right having accrued in favour of the defendant -petitioner, such amendment should not be allowed. The learned Civil Judge in the impugned order allowed the amendment.

(2.) SHRI Mohapatra, the learned counsel appearing for the petitioner challenges the impugned order on the ground that the description of the property given in the plaint schedule is such that the disputed property cannot be identified and, therefore no decree can be passed. The disputed property having not been described properly, a right has accrued in favour of the defendant -petitioner and at a belated stage such amendment could not have been allowed. The learned counsel relied on a decision of this Court in the case of Lucy Narona vs. Sri Raghunath Jew Bije, Chauni Math reported in 74(1992) C.L.T. 463. Shri Pattnaik, the learned Senior Counsel appearing for the opposite party No.1 -defendant on the other hand submitted that inadvertently the description of the suit property had not been given in the schedule in the manner, it should have been given as there was a communication gap between the petitioner and his counsel. It was also contended by Shri Pattnaik, the learned Senior Counsel appearing on behalf of the plaintiff -opposite party No.1 that in another suit filed by the defendant -petitioner, the suit property has been properly described and the same description is sought to be brought in by way of amendment and, therefore no prejudice would be caused to the defendant petitioner, if the amendment is allowed. The learned counsel relied on a decision of the Apex Court in the case of Pankaja and another vs. Yellappa (D) by L.Rs. and others reported in 98(2004) CLT 612 (SC).

(3.) IN view of that has been decided by the Apex Court in the aforesaid decision and in view of the fact that in another suit filed by the petitioner the description of the suit property has been admitted by the petitioner, which is sought to be brought in by way of amendment, it cannot be said that by incomplete description of the suit property in the plaint schedule any right has been accrued in favour of the defendant -petitioner. I therefore do not find any merit in the writ application. The writ application is accordingly dismissed. Application dismissed.