NARESH CHANDRA SAHOO AND ORS. Vs. PITAMBAR SAHOO

JUDGEMENT

(1.) Challenge has been made in this writ petition to the order dated 11.11.2005 passed by the learned Civil Judge (Senior division), Kendrapara in I.S. No. 19 of 2002 allowing the petition dated 3.3.2005 filed by the Plaintiff under Order 6, Rule 17 of the Code of Civil Procedure for amendment of the plaint, subject to payment of cost of Rs. 200/ - with an observation that the prejudice caused to the Defendants can be compensated by awarding cost and the Defendants will not be prejudiced if such amendment is allowed as because they will be given a further chance to file additional written statement in order to meet the facts inserted by way of such amendment, if they so desire.

(2.) The Petitioners are the Defendants before the court below. Their main grievance regarding amendment was that the Plaintiff wanted to replace in plaint certain facts which were barred by limitation by the date the amendment application was filed, i.e., 3.3.2005. In the objection to the amendment application, they specifically stated that the Plaintiff should not be permitted to replace the plaint all together by filing amendment application and the assertions made in the amendment application were barred by law of limitation. If the amendment was allowed and incorporated in the plaint and if it would relate back to the date of filing of the suit, a right accrued to the Defendants by efflux of time would be taken away. Therefore, they prayed to set aside the impugned order. However, from the impugned order it appears that the learned Civil Judge held that if the claim of the Plaintiff was barred by limitation, a separate issue in that regard would be framed and adjudicated.

(3.) The learned Counsel appearing for the opposite parties submitted that the application for amendment of the plaint should be considered liberally. In support of his contention, he cited a decision of the apex Court in the case of Puran Ram v/s. Bhaguram and Anr. reported in : JT 2008(4) SC 37 wherein it has been held that a time barred amendment could also be allowed considering the facts and circumstances of the case. In a suit for specific performance of contract for sale, it is permissible to amend a part of the description of the suit property not only in the plaint but also in the agreement. It was observed therein that Sec. 26 of the Specific Relief Act says as to when a contract or other instrument can be rectified and provides that when through fraud or a mutual mistake of the parties, the agreement in writing does not express their real intention, it is open to the parties to apply for an amendment of the instrument. It also provides that when such a situation arises, then