SUBHADRA BAI AND OTHERS Vs. RUPA BAI

JUDGEMENT

(1.) By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 30.9.2015 passed by the learned District Judge, Koraput-Jeypore in Civil Revision Petition No.2 of 2014. By the said order, learned revisional court dismissed the revision and confirmed the order dated 25.4.2014 passed by the learned Civil Judge (Sr. Divn.), Koraput in T.S. No.54 of 1994/T.S. No.19 of 2001, whereby and whereunder learned trial court allowed the application of the defendant no.2 under Order 6 Rule 17 C.P.C. for amendment of written statement-cum-counter claim.

(2.) This case has a chequered history. The petitioners as plaintiffs instituted the suit for declaration their right, title and interest over 'A' schedule property, recovery of possession of 'B' schedule property impleading the opposite party as well as one Moti Bai as defendants. Pursuant to issuance of summons, the defendant nos.1 and 2 entered appearance and filed written statement-cumcounter claim. During pendency of the suit, the defendant no.1 died. The suit was decreed. The counter claim was dismissed. Assailing the judgment and decree of the learned trial court, the defendant no.2, opposite party herein, filed Title Appeal No.8 of 1998 in the court of the learned Additional District Judge, Jeypore. Learned appellate court confirmed some of the findings of the learned trial court and set aside the other findings. Finally it remitted the matter back to the learned trial court and granted liberty to the appellant to carry out the amendment. Learned appellate court also directed the learned trial court to frame additional issue and granted liberty to the parties to adduce evidence. While the matter stood thus, the plaintiffs filed execution proceeding being E.P. No.74 of 2000 to execute the decree. The defendant no.2 was evicted on 12.10.2000 from 'B' schedule property. Defendant no.2 assailed the order in M.J.C. No.42 of 2000 under Order 21 Rule 99 read with 100 C.P.C. praying, inter alia, for restoration of possession. The same was dismissed. While the matter stood thus, the judgment passed by the learned appellate court was challenged in Misc. Appeal No.740 of 2001 before this Court, which was eventually dismissed on 24.06.2005. After remand, the defendant no.2 filed written statement-cum-counter claim claiming restitution and mesne profit and compensation. Plaintiff nos.3 to 5 filed their written statement to the counter claim. On 9.1.2006, the plaintiff nos.1 and 2 filed an application to permit them to sign on the written statement filed by the plaintiff nos.3 to 5. Learned trial court having rejected the same, the plaintiff nos.1 and 2 filed W.P.(C) No.4932 of 2006 before this Court. This Court set aside the order of the learned trial court on 24.06.2013. Thereafter the defendant no.2 filed an application under Order 6 Rule 17 seeking amendment of written statement-cum-counter claim. The plaintiffs filed objection to the amendment petition. Learned trial court allowed the application for amendment of counter claim. Thereafter the defendant no.2 filed consolidated written statement-cum-counter claim. On 10.09.2014, the plaintiffs filed rejoinder to the said counter claim. The plaintiffs assailed the order of the learned trial court allowing the amendment in C.R.P. No.2 of 2015 before the learned District Judge, Koraput-Jeypore. The same was dismissed on 30.09.2015. The orders passed by the learned trial court as well the revisional court have been assailed in this petition.

(3.) Mr. Panigrahi, learned counsel for the petitioners submitted that by the judgment dated 23.03.2001 in T.A. No.8 of 1998, learned appellate court remitted the matter back to the learned trial court for de novo hearing. After 13 years, the defendant no.2 filed an application for amendment of the counter claim. The proposed amendment will change the nature and character of the suit.