Manjulata Tripathy And Others vs Ashok Kumar Satpathy ... Opposite Party
2023 Latest Caselaw 15367 Ori

Orissa High Court

Manjulata Tripathy And Others vs Ashok Kumar Satpathy ... Opposite Party on 1 December, 2023

Author: K.R. Mohapatra

Bench: Krushna Ram Mohapatra

Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 04-Dec-2023 14:47:00




                                           HIGH COURT OF ORISSA: CUTTACK

                                                      C.M.P No.1016 of 2023

                                              (In the matter of an application under
                                          Article 227 of the Constitution of India, 1950)

                                                               *******
                         Manjulata Tripathy and others        ...                         Petitioners
                                                      -versus-
                         Ashok Kumar Satpathy                 ...                    Opposite Party

                             Advocate for the Parties
                             For the Petitioner    :              Mr. Bibekananda Bhuyan, Advocate
                             For Opp. Party        :              Mr. Tushar Kumar Mishra, Advocate

                                                   CORAM:
                                                  JUSTICE KRUSHNA RAM MOHAPATRA
                             -------------------------------------------------------------------------------
                                           Heard and Disposed of on 01.12.2023
                                   ------------------------------------------------------------------------
                                                        JUDGMENT

K.R. Mohapatra, J.

1. This matter is taken up through hybrid mode.

2. Order dated 5th August, 2023 (Annexure-5) passed by learned Civil Judge (Senior Division), First Court Cuttack in TS No.97 of 1996 is under challenge in this CMP, whereby an application filed by the Plaintiffs under Order VI Rule 17 read with Section 153 CPC, has been rejected.

3. Mr. Bhuyan, learned counsel for the Petitioners submits that the suit has been filed with the following prayers:

"The Plaintiffs therefore pray that

a) For a declaration that defendant No. 1 is not the adopted son of late Brundaban Mohapatra and has acquired no right, title or interest in the disputed properties.

Digitally Signed // 2 //

Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Dec-2023 14:47:00

b) For confirmation of possession or in the alternative for recovery of possession of the disputed property if it is found that has been disposed during pendency of the suit.

                                           c)    For a decree for
                                           d)    For any other relief.
                                           e)    For a decree for cost of the suit."

4. In view of Section 34 of the Specific Relief Act, 1963, negative prayer cannot be granted in a suit. In the meantime, the evidence of the Plaintiffs is closed and Defendants have examined four witnesses. The cross-examination of Defendant No.1 (D.W.5) is going on. The crux of the matter is with regard to adoption of Defendant No.1 by Brundaban Mohapatra. The Defendant No.1 claims that he has been adopted by Brubandaban Mohapatra observing all the formalities and a registered acknowledgement deed of adoption has been executed on 22nd August, 1989. The Plaintiffs, on the other hand claimed that the deed of acknowledgement of adoption is invalid and by virtue of the same, Defendant No.1 does not acquire any right over the suit property.

During cross-examination of D.W.5, the Plaintiffs realized that they will not succeed in respect of prayer at Para 27 (a) of the plaint (quoted supra).

5. Further, in view of the joint recording of the suit land with share note in respect of some Khatas of the suit schedule, the Plaintiffs felt that the alternative prayer for partition should be appropriate for effective adjudication of the lis between the parties. In view of the above, the petition for amendment under Order VI Rule 17 read with 153 CPC was filed proposing following amendment:

" SCHEDULE (Proposed amendment)

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Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Dec-2023 14:47:00

1. In Para-11, 4th line delete the work "Plaintiff" and in its place write the words "Brundaban Mohapatra".

2. In Para-27 delete the prayer (a) and in its place substitute the followings:

a) For a declaration that the defendant No.1 is the son of Bhagaban Satapathy and Usharani Satapathy of village Sinilla under Tirtol police Station in the district of Jagatsinghpur and has got no right, title, interest in the disputed property holding interalia therein the Regd.

Deed of Acknowledgement of Adoption dated 22.08.1989 is illegal and invalid and the defendant No.1 has not acquired any right through the said Deed as adopted son of Brundaban Mohapatra.

b) In alternative, if it is held that the defendant No.1 is the adopted son of Brundaban Mohapatra, let there be a preliminary decree for partition be passed allotting 2/3rd share in favour of the plaintiffs out of the suit schedule property and failing amicable partition by meets and bounds within the time stipulated, a Civil Court Commissioner be deputed to effect partition and the share so ascertained in the preliminary decree be allotted in favour of the plaintiff as usually done in a final decree proceeding and the plaintiffs share may be delivered in their favour in execution of the said decree.

AND In the relief portion of the said para be renumbered, the existing serial No.b to e as Serial No.c to f."

6. Learned trial Court rejected the petition on the ground that the suit is at the fag end of the trial. It further held that the suit, being 25 years old and this Court is pressing hard for disposal of year old suits, the petition for amendment should not be entertained. Learned trial Court relying upon the decision in Chander Kanta Bansal vrs. Rajinder Singh Anand, reported in AIR 2008 SCC 2234, held that since by allowing the amendment, scope and ambit of the suit will be explained, the same is not permissible. It is also held that the proposed amendment with regard to declaration is barred by limitation.

7. It is submitted by Mr. Bhuyan, learned counsel for the Petitioner that the Plaintiffs do not want to press the proposed

Digitally Signed // 4 //

Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Dec-2023 14:47:00

amendment with regard to declaration of the adoption deed dated 20th August, 1989. But, the claim for partition being a continuing cause of action and will culminate the differences between the parties by passing a preliminary decree, the same should be allowed. It is his submission that in the event, the amendment with regard to relief seeking partition is allowed, the Plaintiffs shall not adduce further evidence in the suit.

8. Mr. Mishra, learned counsel for the Defendant-Opposite Party No.1 vehemently objects to the same. It is his submission that all the properties of the joint family are not brought on record. Further, in TS No.170 of 1989 between Brundaban Mohapatra and him, the right, title and interest of the Defendant No.1 has already been declared and the consolidation ROR has already been prepared accordingly. Thus, it cannot be reopened even if the proposed amendment is allowed. He, further relied upon the case of M. Revanna vs Anjanamma (Dead) by LRs and others, reported in (2019) 4 SCC 332, in which, it is held as under:

"9. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff 6 Respondent 1 herein."

9. In view of the above, the proposed amendment, if allowed, will change the nature and character of the suit, thereby expand the scope and ambit of the suit, which is not permissible in law. In respect of some of the suit scheduled properties, share note has

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Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Dec-2023 14:47:00

already been recorded by the consolidation authorities. Thus, the Petitioners should file a separate suit for partition in respect of entire property of the joint family.

10. It is his submission that the amendment sought for is not bona fide and is an afterthought to delay the proceeding and to harass the Defendant No.1. During pendency of the suit, the Plaintiffs prayed for deletion of Defendant No.2. Thus, in absence of all the LRs of Defendant No.2, no effective partition can take place. He, therefore, prays for dismissal of the CMP.

11. Taking note of the submission made by learned counsel for the parties, it is apt to record that the Plaintiffs do not want to press the proposed amendment at Para 27(a) of the Schedule, as submitted Mr. Bhuyan\, learned counsel for the Petitioners. Thus, incorporation of prayer with regard to declaration of the deed of acknowledgement of adoption need not be considered in this CMP.

12. In respect of incorporation of prayer for partition it is submitted by Mr. Bhuyan, learned counsel for the Petitioners that the Plaintiffs will not adduce any further evidence in the suit, if the amendment sought for is allowed. But that does not take away the right of the Defendant No.1 to file additional written statement and recall the witnesses both the Plaintiffs and Defendants for further cross-examination and re-examination respectively.

13. It is submitted by Mr. Mishra, learned counsel for Defendant-Opposite Party No.1 that although the properties of the joint family have been included in the Schedule of the plaint, but the ROR in respect of those properties are not exhibited. Thus, learned trial Court will be in a dark about the status of those

Digitally Signed // 6 //

Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Dec-2023 14:47:00

properties while adjudicating the suit, in the event, the amendment with regard to incorporation of prayer for partition is allowed.

14. Mr. Bhuyan, learned counsel for the Petitioners-Plaintiffs relied upon the decision of Life Insurance Corporation of India vrs. Sanjeev Builders Private Limited and Another, reported in 2022 SCC OnLine SC 1128. He verily relied upon Para 70 Clause

(ii) to (vii) and (x) and submits that amendment of the pleadings should be allowed if the same is intended for effective adjudication of the suit and shorten the period of litigation. It is his submission that by allowing the amendment, there may be delay of few months for adjudication of the suit, but compelling the party, who seeks amendment to file a separate suit for partition, will certainly take several years to determine the right of the parties.

15. This Court, however, is of the considered opinion that the submission of Mr. Bhuyan, learned counsel for the Plaintiffs- Petitioners cannot be accepted in view of the settled position of law that by virtue of the amendment the scope and ambit of the suit cannot be expanded, more particularly when the suit is at the fag end of the trial. There is no legal bar for the Plaintiffs seeking for a relief for partition by filing a properly constituted suit. But, by amending the plaint, it will be more complicated and as the issue for partition has to be decided along with other reliefs sought for and the witnesses might be recalled by the Defendant No.1 and he my re-examine his witnesses.

16. Further the suit is of the year 1996 and it is at the fag end of the trial as the cross-examination of Defendant No.1 is going and four witnesses on his behalf had already been examined.

Digitally Signed // 7 //

Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 04-Dec-2023 14:47:00

18. In that view of the matter, though there is no legal bar to entertain an application under Order VI Rule 17 read with 153 CPC, but in the facts and circumstances of the case stated above, this Court is not inclined to interfere with the impugned order.

19. Accordingly, the CMP, being devoid of any merit, stands dismissed.

Urgent certified copy of this judgment be granted on proper application.

(K.R. Mohapatra) Judge

High Court of Orissa, Cuttack Dated 1st Day of December, 2023/ Rojalin