BUDHINATH PADHI Vs. SECOND ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) Being felt aggrieved by the order of the learned trial Judge (confirmed in revision by the learned Additional District Judge) rejecting the prayer for amendment of the plaint, the plaintiff has filed this writ application under Articles 226 and 227 of the Constitution of India for quashing of the same.

(2.) THE petitioner (hereinafter referred to as 'the plaintiff) has filed T.S. No. 9 of 1995 in the Court of Civil Judge (Junior Division), Berhampur for permanent injunction restraining the opposite parties 3 to 6 (hereinafter referred to as, defendant No. 1, defendant No. 2 and defendant No. 3 respectively) from interfering with his exclusive possession over the land measuring Ac. 0.061 decimals of Hal Plot No. 703 appertaining to khata No. 208 of mouza Luchapada (hereinafter referred to as 'the suit land') His case is that Mahalaxmi, mother of defendants 2 and 3 agreed to sell the suit land to him. Before execution of sale -deed, she expired on 20.3.1992. She had, however, executed a will in favour of her two daughters, defendants 2 and 3, prior to her death. The plaintiff after coming to know about the death of Mahalaxmi approached the defendants 2 and 3 to execute the sale deed in respect of the suit land as was promised and agreed to by their mother. They assured the plaintiff that after the family partition between them, sale -deed would be duly executed by either of them in whose share the suit land would fall in partition. Defendant No. 2 thereafter executed a registered sale -deed dated 25.11.1994. In respect of the suit land for a consideration of Rs. 14,000/ - in favour of the plaintiff and delivered vacant possession of the same. Since then, the plaintiff is in peaceful and exclusive possession and enjoyment of the suit land. While the matter stood thus, the plaintiff on 5.12.1994 found stacking of some metals and murram over the suit land. On enquiry, he could understand that defendant No. 1 had stacked the materials with a view to construct a road on a portion of the suit land. When asked, the defendant No. 1 threatened the plaintiff with dire consequences. Finding no other way, he filed the aforesaid suit for permanent injunction restraining the defendant No. 1 from entering upon and interfering with his peaceful and exclusive possession over the suit land. Defendant No. 1 filed written statement denying the allegations made in the plaint. His case is that defendants 2 and 3 mutually agreed that Ac. 0.11 cents from Hal Plot No. 703 (which measure Ac. 0.122 decimals in total) would be allotted to defendant No. 3 and defendant No. 2 would be allotted Ac. 0.12 cents in survey No. 613/3. By such oral family arrangements, defendants 2 and 3 continued to enjoy respective item of the land mentioned above. Defendant No. 3 being in need of money, sold the entire extent of Ac. 0.11 cents of Hal Plot No. 703 to him (defendant No. 1) by registered sale -deed dated 10.11.1994 and delivered possession thereof on the same day. Defendant No. 2 has no interest in the suit land and she could not have sold the same to the plaintiff and the so -called sale -deed executed by defendant No. 2 in favour of the plaintiff on 26.11.1 994 is void. Defendant No. 2 filed her written statement supporting the case of the plaintiff. She alleged that the sale -deed executed by defendant No. 3 in favour of defendant No. 1 is void and invalid. Defendant No. 3 filed separate written statement denying the allegations made in the plaint. Her case is that the plaintiff in collusion with defendant No. 2 had set up an imaginary safety to grab the property.

(3.) SHRI Mohapatra, learned counsel for the petition contended that the amendment sought for is of formal nature and in view of the admitted position that there was an amicable partition between defendants 2 and 3, the alternative prayer for partition of the suit land will not prejudice any one and to avoid multiplicity of proceedings and for determining the real controversy in the suit, the prayer should have been allowed and the learned Additional District Judge acted illegally and with material irregularity in exercise of his jurisdiction in not interfering with the order of the trial Judge. Shri Sanjit Mohanty appearing for defendant No. 1, on the other hand, submitted that by the proposed amendment a new case is being substituted and if the same is allowed, it would change the nature and character of the suit. In support of this submission, he relied on a judgment of a learned Single Judge of this Court in Halu Sandh v. Manbodh Bagarti, 1986 (I) OLR 628. Relying on a Bench decision of this Court in Harekrushna Sahoo v. District Judge, Cuttack, 83 (1997) CLT 796, he also contended that a writ Court in exercise of the extraordinary jurisdiction should not interfere with the impugned orders as it cannot sit in appeal over those order : Order 6, Rule 17, CPC gives a wide discretion to the Court to allow amendments necessary for the purpose of determining the real questions in controversy between the parties. We may state that the discretion must be exercised according to judicial principles and not in an arbitrary or fanciful manner. As has been hold by the Supreme Court in Smt. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126 the power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation notwithstanding. But the exercise of such far -reaching discretionary powers is governed by judicial considerations and wider the discretion, greater ought to be the care and circumspection on the part of the Court.