HAREKRUSHNA SAHOO Vs. DISTRICT JUDGE, CUTTACK AND OTHERS

JUDGEMENT

(1.) This plaintiff has filed this writ application challenging the legality of the order dated 18.8.95 passed by the District Judge, Cuttack, in Civil Revision No. 143 of 1993 dismissing the said revision and thereby confirming the order of the trial Court rejecting the application of the plaintiff-petitioner under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as the 'Code') for amendment of the plaint.

(2.) The plaintiff-petitioner filed Title Suit No. 157 of 1988 for declaration of right, title, interest and for permanent injunction in respect of 'A' Schedule property. After filing of the written statements by the contesting defendants, when the suit was ready for hearing, the petitioner filed an application under Order 6, Rule 17 of the Code for amendment of the plaint. The said prayer was rejected by the trial Court mainly on the ground that the amendment if allowed would take away the effect of admission made by the petitioner in the original plaint. While dismissing the Civil Revision, similar view has been expressed by the revisional court, that is to say the District Judge, Since a further revision against the order of the revisional Court is not maintainable, the plaintiff has filed this application under Articles 226 and 227 of the Constitution of India.

(3.) It is contended by the learned counsel for the petitioner that an application for amendment can be filed at any stage of the suit. It is further submitted that by the proposed amendment, only an additional approach had been made and it should not have been rejected on the ground that the effect of admission will be taken away. It is further submitted that even assuming that the effect of any admission is taken away, yet the Courts below should have allowed the amendment in order to avoid the multiplicity of proceeding and to do Substantial justice between the parties. The learned counsel for the petitioner has relied upon decisions reported in (1991) 2 Orissa LB 456 (Smt. Sulochana Dei alias, Swain Vs. Indramani Swain) , (1989) 63 Cut LT 400,(Hundari Bewa Vs. Keluni Dei) and AIR 1983 SC 462 (Panchdeo Narain Srivastava Vs. Km. Jyoti Sahpy) in support of such contention, The learned counsel for the opposite parties has relied upon decisions reported in AIR 1977 Calcutta 189 (Kanailal Das Vs. Jiban Kanal Das) and AIR 1986 Calcutta 113 (Monika Banerjee Vs. Biswa-bikash Sengupta) and submitted that a completely new story is being sought to be incorporated by way of amendment which would change the nature of the case and should not be allowed. It is further submitted that in any view of the matter, the question of amendment being discretionary and the trial Court and the revisional Court having exercised (he discretion in a particular manner, their orders should not be quashed in exercise of extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India.