MUMTAZ BEGUM Vs. SURENDRA KUMAR SAHOO

JUDGEMENT

(1.) This petition challenges the order dated 16.1.2017 passed by the learned 2nd Additional Civil Judge (Senior Division), Cuttack in C.S.No.300 of 2011, whereby and whereunder, learned trial court has allowed the application of the plaintiff under Order 6 Rule 17 CPC to amend the plaint.

(2.) The plaintiff-opposite party no.1 instituted the suit to set aside the registered sale deed dated 13.2.2009 executed by defendant nos. 1 to 7 in favour of defendant no.8, eviction and perpetual injunction stating that he had purchased Ac.0.240 dec. of land appertaining to hal plot no.21, khata no.198, Unit No.29, Chauliaganj of mouza-Cuttack Town from defendant no.9 by means of a registered sale deed no.2349 dated 8.5.2009. He is in possession of the same. When defendant no.8 forcibly constructed over a portion of the suit land, he instituted the suit.

(3.) Defendant no.8 filed a written statement denying the assertions made in the plaint. According to him, prior to execution of the sale deed by defendant no.9, he had purchased Ac.0.105 dec. of land form defendant nos.1 to 7 by means of a registered sale deed dated 13.2.2009. He is in possession of the same. Defendant nos. 1, 4 and 7 filed a joint written statement supporting the case of defendant no.8. While matter stood thus, the plaintiff filed an application under Order 6 Rule 17 CPC to amend the plaint. In the proposed amendment, the plaintiff sought relief for a money decree of Rs.26,82,179/- with P.I. and F.I. against defendant no.9, who sold away the entire suit land in his favour for a consideration. It is stated that after filing of written statement by defendant nos. 1, 4, 7 and 8, he came to know that defendant nos.1 to 7 had half share over Ac.0.240 dec. of land. They alienated the same in favour of defendant no.8 by means of a registered sale deed dated 13.2.2009. He purchased the entire area. His vendor, defendant no.9, had no right to alienate the same except Ac.0.120 dec. of land. Thus, defendant no.9 is obliged to return the consideration amount i.e., Rs.18.45,000/- with interest @9% from the date of filing of the written statement. Defendant no.9 filed objection stating therein that defendant nos. 1, 4, 7 and 8 filed their written statement on 14.11.2011. Thus the cause of action arose on that day. The claim is barred by limitation. The proposed amendment will change the nature and character of the suit. Learned trial court allowed the petition holding that the proposed amendment will not change the nature and character of the suit. It will prevent the multiplicity of proceeding. The plea of limitation shall be taken into consideration at the time of hearing of the suit. The trial of the suit has not commenced.