HIGH COURT OF ORISSA: CUTTACK. W.P.(C) No.13080 of 2008 In the matter of an application under Articles 226 and 227 of the Constitution of India. --------- Manikeswari Prasad Dev @ Manikeswari Prasad Deb …… Petitioner -Versus- Kishore Prasad Deb …… Opp. Party For Petitioner : M/s. B. Sahoo, A. Tripathy, B. Mohanty and C. Pattanaik For Opp. Party : M/s. S.K. Pradhan PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL Date of hearing –1.11.2010 : Date of judgment –19.11.2010 B.K. PATEL, J. Legality of the order dated 4.9.2008 passed by learned Civil Judge (Jr. Divn.), Berhampur in T.S. Case No.134 of 1996 rejecting petitioner’s application under Order 6 Rule 17 of the C.P.C. for amendment of written statement has been assailed in this writ petition. 2. Opposite party is the plaintiff and petitioner is the defendant in the suit. Plaintiff and defendant are brothers. In terms of compromise decree passed in T.S. No.26 of 1972, plaintiff, defendant and their five co-sharers were allotted and are in occupation of different portions of share land as per the suit plan. Plaintiff is the owner in possession over plots C1 and C2 situated adjacent to plots B1 and B2 allotted to the defendant. Plaintiff’s share land has been recorded separately under Khata No.989/19 of village Paramahansapur in Mutation Case No.8899 of 1995 in accordance with the compromise decree. It is alleged by the plaintiff that defendant has broken a portion of wall on the Western boundary of plots C1 and C2 and has raised construction thereon. On the basis of such allegation, plaintiff has filed the suit for mandatory injunction to direct the defendant to remove the construction raised by him by breaking the wall and to restore the suit wall to its original condition. Defendant has filed written statement denying the allegation to have broken any wall. It is pleaded that as per the partition in terms of compromise decree there is no wall in existence as claimed by the plaintiff. It is categorically pleaded that parties are in possession and enjoyment of land allotted to them as per the plan attached to the compromise decree in T.S. No.26 of 1972. It was also categorically alleged that plan annexed to the plaint is inadequate and does not give a correct state of affairs. 3. In the application under Order 6 Rule 17 of the C.P.C. filed by the defendant it is averred that as the crucial question to be determined in the suit is as to whether the suit property belongs to plaintiff or defendant, written statement is required to be amended to supply some 2 relevant informations which were inadvertently left out. The proposed amendment seeks to incorporate the following two paragraphs in the written statement: “9(a) That the Plaintiff’s share is marked as “C1 & C2”, where the share of the Defendant is marked as “B1 & B2” in the partition decree passed in T.S. 26/1972 by the Subordinate Judge, Berhampur, Ganjam. The Plot ‘B1’ measures 89 link (eighty nine) in width to the North and 120 link (one hundred twenty) to the South. Similarly the width of the Plot ‘C1’ to the North is 85 link (eighty five) and 71 link (seventy one) to the South. The width of ‘D1’ to North is 85 link (eighty five) and 65 (sixty five) to the South. Plot ‘E1’ measures 100 link (one hundred) to the North and 98 link (ninety eight) to the South. Plot ‘F1’ measures 105 link (one hundred five) to the North and 87 link (eighty seven) to the South. Plot ‘G1’ measures 75 link (seventy five) to the North and 85 link (eighty five) to the South and Plot ‘A1’ measures 95 link (ninety five) to the North and 95 link (ninety five) to the South. 9(b) That the boundary line between the Plaintiff (Plot C1) and Defendant Plot B1) has been shown as ‘Q’ & ‘K’ as per the plan attached to the written statement and forms part of the same. Moreover the measurement between ‘P’ & ‘S’ is 401 link in length. The area between ‘P’ & ‘Q’ is 20 link in width and ‘S’ & ‘R’ is 20 link in width.” 4. In rejecting the application for amendment it was observed by the learned trial court that the proposed amendment which seeks to specify the length and width of the share in the partition decree passed in T.S. No.26 of 1972 is not required for just decision of the case. It was also held that the amendment would introduce a new case after commencement of hearing of the suit. 3 5. Learned counsel for the petitioner contended that parties are not in dispute regarding compromise decree passed in T.S. No.26 of 1972. In the said decree share of each of the co-sharers was clearly defined. As the plaint and the written statement do not adequately describes respective share land of the parties, defendant simply wants to provide better description of suit property in the written statement by way of amendment. Defendant does not claim any relief on the basis of proposed amendment. Defendant also seeks neither to withdraw any admission nor to make any new denial. Insertion of better particulars of the suit property into the written statement shall be in the interest of just adjudication of dispute between the parties by bringing in clarity and removing confusion. In support of his contentions learned counsel for the petitioner relied upon decision in Andhra Bank –vrs.- ABN Amro Bank N.V. and others : 2007 (II) OLR (SC) 544 6. In reply, learned counsel for the opposite party contended that learned court below has rightly rejected the application for amendment of written statement filed at the belated stage after commencement of hearing of the suit. According to him, proposed amendment will not only change the nature and constitution of the suit but also is not necessary. Reliance was placed by the learned counsel for the opposite party on the decisions in Heeralal –vrs.- Kalyan Mal & Ors.: 4 1997 (4) CCC 141 (SC) and South Konkan Distilleries and another – vrs.- Prabhakar Gajanan Naik and others : 2009(I) OLR (SC) 608. 7. As has been reiterated in Smt. Sulochana Dei @ Swain and another –v- Indramani Swain : 1991(II) OLR 456, powers of amendment vested in Court in terms of Order 6, Rule 17 of the Code of Civil Procedure,1908 ( in short, ‘the Code’) are very wide. It is the duty of concerned Court to allow amendment of pleading when same is necessary for facilitating determination of real questions in controversy. Main considerations to be borne in mind while dealing with prayer for amendment are advancement of interest of substantial justice, and avoidance of multiplicity of litigation. A liberal approach is intended since Courts exist to decide rights of the parties and not to punish them for mistakes they make in conduct of their cases. There are, however, two limitations on power of Court to allow amendment. It should not be allowed where it has effect of substituting one cause of action for another, or changing the subject matter of dispute. The other is that an amendment should not ordinarily be allowed if it would deprive other side of a valuable right accrued by lapse of time. Where, however, proposed amendment is in essence a different approach to the facts in existence, amendment is to be allowed. 5 8. In The Nayabadi and others –v- Smt. Sanghamitra Sahoo and another : 1991(II) OLR 456 it has been held that when an amendment sought for is in continuation of the stand already taken in the written statement and for the purpose of better clarification of the same, it should be allowed provided it does not change the nature and character of the suit. 9. It is pointed out in Andhra Bank –vrs.- ABN Amro Bank N.V. and others(supra), relied upon by the learned counsel for the petitioner, that mere delay is not a sufficient ground to disallow amendment of pleadings unless the facts sought to be introduced relate to any cause of action which is barred by time. Prayer for amendment of written statement should not be considered with the same rigour and strictness as prayer for amendment of plaint. In case the plaintiff has already examined some witnesses it can be compensated in terms of cost. In this connection, decisions of this Court in the cases of Paradip Port Trust and another –v- M/s Pearl Fish Enterprises and others: 1998(II) OLR 127 and Shri Shri Kashi Biswanath Dev represented by Laxmidhar alias Lakhan Jena –v- Paramananda Routrai and others: 1985(I) OLR 256 also may be referred to. 10. In the present case, rival claims of the parties are based on the compromise decree passed in T.S.No.26 of 1972. Plaintiff as well as 6 defendant claim title and possession over the suit property on the basis of said decree. In the application for amendment plaintiff does not seek deletion of any pleading. His prayer is introduction of two additional paragraphs to the written statement. Defendant has not made any counter claim. So question of seeking a new relief does not arise. Pleadings sought to be incorporated into the written statement extracted above contains an elaborate description of the area of the suit property upon specific reference of the decree passed in T.S.No.26 of 1972. In paragraph-1 of the written statement itself it has been averred that the plan annexed to the plaint is inadequate and does not give correct state of affairs. Proposed amendment is nothing more than elaboration, explanation and clarification of the suit property by the defendant. Such description is certainly in the interest facilitating determination of dispute between the parties. Admittedly, defendant has filed the application for amendment at a belated stage after commencement of trial. But delay alone cannot be the ground to refuse amendment of the written statement when plaintiff can be compensated in terms of cost for inconvenience caused to him. 11. It is difficult to appreciate how the decisions relied upon by the learned counsel for the opposite party is of any assistance to him. Decision in Heeralal –vrs.- Kalyan Mal & Ors (supra) relates to an 7 application for amendment of written statement to withdraw earlier admission totally displacing case of the plaintiff causing irretrievable prejudice which could not be compensated in terms of cost. In the present case, proposed amendment is simple description of the suit property and it does not seek to withdraw any admission taken in the written statement. 12. Decision in South Konkan Distilleries and another –vrs.- Prabhakar Gajanan Naik and others (supra) related to amendment of counter claim made in the written statement after expiry period of limitation for making such counter claim. In the said decision also it has been observed that it is settled that court must be extremely liberal in granting prayer for amendment. It is always open to the court to allow an amendment if it is of the view that allowing of an amendment shall really sub-serve the ultimate cause of justice and avoid further litigation. 13. Keeping in view the facts and circumstances of the case, nature of the pleadings of the parties, nature of amendment sought to the written statement and the legal principles referred to above, it is found that the reasons assigned by the trial court in refusing amendment of written statement are not sustainable. Therefore, refusal to accept prayer for amendment was improper. 8 14. For the reasons stated above, the impugned order is set aside and learned court below is directed to allow amendment sought for by the defendant subject to payment of cost of Rs.1000/-(rupees one thousand) by the defendant to the plaintiff within four weeks from today. Plaintiff shall also be entitled to further examine witnesses already examined by him as well as to examine any other witness and to further cross-examine witnesses, if any, examined by the defendant. The writ petition is accordingly allowed. ..………………….. B.K. Patel, J. Orissa High Court, Cuttack, Dated the 18th Nov.,2010/Palai 9