GOURANGA DAS MOHAPATRA Vs. NARASINGHA DAS MOHAPATRA

JUDGEMENT

(1.) Order passed by learned District Judge, Puri reversing order passed by learned Civil Judge (Senior Division), Puri and thereby rejecting prayer for amendment of the plaint in terms of Order 6, Rule 17 of Code of Civil Procedure, 1908 (in short, 'CPC') is the subject -matter in this writ application.

(2.) FACTUAL position in a nut -shell is as follows : Petitioner as plaintiff has filed the suit (O.S. No. 61 of 1994) for partition. During pendency of the suit, an application was filed under Order 6, Rule 17, CPC for amendment of the plaint. By amendment, plaintiff wanted to include certain properties. The properties involved were (a) those transferred by his grandfather in favour of defendant No. 1 (opp. party No. 1) under registered gift deed dated 17.1 2.1958 and (b) transfer made by defendant No. 2 in favour of defendant No. 1 under a registered sale deed No. 7823 dated 30.8.1972 transferring 'Sevapali' of two days in respect of temple Lord Jagannath. Learned Civil Judge (Sr. Dvn.), Puri accepted prayer. The order was challenged by defendant No. 1 (opp. party No. 1 herein) before learned District Judge, Puri who held that the proposed amendment changed the foundation of the suit, converting the suit for partition into a suit of totally different character. It was held that trnasfers made in favour of defendant No. 1 on 19.12.1958 and 30.8.1972 are required to be avoided in a separate suit.

(3.) AT this juncture reference to the averments made in the application for amendment would be appropriate. A bare reading of the application shows that it is extremely vague and confusing. The proposed amendment as set out in the application inter alia reads as follows : 'xx xx xx That during pendency of the suit, the plaintiff could learn that the defendant No. 1 (one) has managed to obtain two gift deeds alleged to have been made by the plaintiff's grandfather late Lokanath Das Mohapatra in respect of joint family properties.' (Underlining for emphasis) During the course of hearing of the writ application, learned counsel for petitioner fairly accepted that it was intended to bring on record two deeds, one of them being a gift deed and the other a sale deed. It has also been fairly accepted that no description of document relating to any gift deed has been given. It has been submitted that reference has been made to a sale deed. i.e. R.S.D. No. 7823 executed in the year 1972. It is of relevance to note that the sale deed was executed by plaintiff's father and not grand - father as quoted in the extracted portion as referred to above. This itself goes to show vagueness of the averments. At the time of hearing of the writ application, petitioner cannot be permitted to say that there were mistakes in the averments, and in fact not two gift deeds, but one gift deed and one sale deed were sought to be referred to. It has also to be noted that there is no prayer either in the original plaint or in the application for proposed amendment, relating to validity of the deeds. Even if it is accepted that the plaintiff -petitioner intended to refer to a sale -deed and a gift -deed and not two gift deeds as stated in the application for amendment, yet in the absence of any challenge to the validity thereof no effective result can emerge from the amendments sought to. be introduced. It is fairly accepted by the learned counsel for petitioner that in the application for amendment no prayer was sought to be introduced to invalidate the transactions covered by the deeds. It is, however, stated that the transactions being void no reference to the same was felt necessary. This plea is without any substance. The transactions were not per se void. As has been observed by the Apex Court in Nachubachmani Prasad Narain Singh v. Ambica Prasad Singh (dead) by his Legal Representatives and Ors. : AIR 1971 SC 776. alienation by Manager of Joint Hindu Family even without legal necessity is voidable and not void.