HIGH COURT OF ORISSA: CUTTACK W.P.(C) No. 26831 of 2011 In the matter of application under Articles 226 & 227 of the Constitution of India. ---------- Smt. Sukanti Pattnaik ………… Petitioner -Versus- Sailendra Narayan Singh & Others ……….. Opp. Parties For Petitioner : Mr. S.P.Misra, P.C.Mohapatra, S.C.Samantaray, B.D.Sahoo, R.C.Pattnaik, Advocates. For Opp. parties : Mr.B.H.Mohanty, D.P.Mohanty, R.K.Nayak, T.K.Mohanty & P.K.Swain, Advocates. P R E S E N T: THE HON’BLE MR. JUSTICE B.K.MISRA ------------------------------------------------------------------------------------------------ Date of Judgment: 24.11.2011 ------------------------------------------------------------------------------------------------ B.K.MISRA, J The petitioner in this writ petition has challenged the legality of the order of the learned Civil Judge (Sr.Divn.) 1st Court, Cuttack dated 20.9.2011 (Annexure-3) in C.S.(I) No. 256 of 1979, where, the prayer of the present petitioner for amendment of the plaint was rejected. 2. The case of the petitioner is that her mother Rajani Rani Samantsinghar had filed T.S. No. 256 of 1979 against the original defendants Puspendra Kumari and two others for specific 2 performance of contract and also for permanent injunction. During pendency of the suit since the original plaintiff died, the present petitioner being the only daughter was substituted. Similarly, on the death of defendant Nos. 1 and 2 during pendency of the suit, they were substituted by the legal heirs namely, defendant Nos. 2(a) to 2(h) and defendant No.2 (b) and defendant No.3 died as bachelors in the year 1998 and 2003 respectively. But though substitutions were allowed by the court but those were not incorporated in the cause title of the plaint. It is also the case of the petitioner that inadvertently the Schedule-A of the original plaint could not be given and description of the property of Schedule-B had been given according to the Sabik Settlement. After the Hal Settlement and publication of the Hal record of right it is felt necessary to incorporate them in the description of the property of the plaint. Besides that there are certain typographical mistakes and those are to be incorporated by way of amendment in the plaint and also for amplification which could not be pleaded due to inadvertence. 3. The present Opposite Parties who are defendants in the court below objected to the prayer of the amendment as sought for by the petitioner on the ground that the purpose of filing the amendment petition was only to cause delay in disposal of the suit and also to frustrate the direction of this Court for disposal of the suit by a specified date. It is also the case of the defendant that the present petitioner has no locus standi to introduce facts by way of amendment which were never raised by the original plaintiff and more 3 over the proposed amendments would completely change the nature and character of the suit. 4. By the impugned order at Annexure-3, the learned Civil Judge (Sr.Divn.) 1st Court, Cuttack, disallowed the prayer of the present petitioner who was the plaintiff in the suit. 5. Learned counsel appearing for the petitioner by placing reliance on several decisions of the Apex Court and this Court contended that the proposed amendments would in no way change the nature and character of the suit. On the other hand the amendments would facilitate the Court to arrive at a just decision of the case and the Court should not have adopted a too technical approach in the matter and when evidence has not yet been led by the parties, delay cannot be a ground for disallowing the prayer for amendment. 6. There is no dispute to the settled position of the law that the Court’s jurisdiction to allow the amendment of pleading is wide enough and also to permit amendment in cases where there has been substantial delay in filing of such amendment application. It is the trite law that the Court must bear in mind that if the proposed amendment would really sub-serve the ultimate cause of justice and avoid further litigation, the same should be allowed but each case has to be decided on its factual background. 7. The learned counsel appearing for the opposite parties contended that the suit in question is of the year 1979 and the parties are litigating since then and the matter had also been taken to the 4 Apex Court, therefore, it cannot be said that the petitioner or her mother were not cognizant of the facts prior to making prayer for incorporating them by amending the plaint including the description of the suit property. It was vociferously urged by the learned counsel for the opposite parties that in the garb of amendment to the plaint, deliberate attempt has been made by the plaintiff to introduce new facts which would completely change the nature and character of the suit and the delay which had occurred in seeking amendment of the plaint shows the mischief game plan of the petitioner to drag on the litigation and the trial court had rightly disallowed the prayer of the petitioner for amendment and therefore, the order dated 20.9.2011 at Anexure-3 should not be interfered with. 8. Broadly speaking while dealing with an application filed under Order, 6 Rule, 17 of the Civil Procedure Code (for short, the C.P.C.), the Court has to bear in mind the following points namely:- (i) Whether the amendment sought is imperative for proper and effective adjudication of the case ? (ii) Whether the application for amendment is bona fide or mala fide ? (iii) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (iv) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (v) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case ? and (vi) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. (2009 (II) OLR (SC)-815, Revajeetu Builders & Developers V. Narayanaswamy & Sons & Others. 5 9. Upon hearing the learned counsel for the respective parties, I perused the petition filed under Order 6, Rule 17 of the C.P.C. (Annexure-1) as well as the proposed amendments sought for by the present petitioner (plaintiff in court below) along with the objection filed by the opposite parties 2 (a), 2 (c) to 2 (h) (Annexure-2) as well as the impugned order at Annexure-3. 10. On perusal of the impugned order at Annexure-3, it appears that the learned Civil Judge (Sr.Division) 1st Court Cuttack, was not inclined to allow the proposed amendment as sought for by the plaintiffs only on the ground that there was long delay in making the prayer for amendment of the plaint and by the proposed amendment, a new schedule and new facts are going to be incorporated in the plaint which would change the nature and character of the suit. There would be also further delay in disposal of the suits which is pending for more than 32 years. 11. Admittedly, the parties have not yet adduced evidence in Title Suit No. 256 of 1979 and evidence is yet to commence. The suit has a chequrred carrier and there are two other suits also namely Title Suit No. 287 of 1978 and Title Suit No. 221 of 1979 which were heard analogously but judgments could not be pronounced as the Hon’ble Court in Civil Revision No. 321 of 1984 had given a direction that hearing of the suit i.e. Title Suit No. 256 of 1979 be taken up after T.S. No. 221 of 1979 and T.S. No. 287 of 1978 and the judgments in all the three suits are to be delivered on one date. There was also a direction to the Civil Judge (Sr.Divison), 1st Court, Cuttack 6 in W.P.(C) No. 15515 of 2009 to dispose of the suits by the end of December, 2010. The present intervenor i.e. Labangalata Naik has already been impleaded as defendant No.4 in the suit and she is the decree holder in respect of the suit land. In course of hearing, the learned counsel appearing for the opposite parties contended that with regard to the proposed amendment at Point Nos. 1, 2, 3- I to V, VIII, X, XI they have no objection if those amendments are incorporated to the plaint as those are formal in nature. But serious objections were raised with regard to the proposed amendment as per 3-IX, 3-XII and 3-XIII. As according to the opposite parties if such amendments to the plaint would be allowed that would completely change the nature and character of the suit. 12. I have perused the plaint. The suit admittedly is filed for specific performance of contract. After carefully examining the materials on record and after going through the application for amendment of the plaint, it appears that the question of change the nature and character of the suit does not arise at all even if the proposed amendments are allowed. The suit would remain a suit for specific performance of contract. If such an application for amendment of the plaint has been filed belatedly but for deciding the real controversy between the parties, the delay cannot come on the way as the Courts exit for doing full and complete justice and whatever delay that has occasioned and for the latches in praying for amendment the party against whom the amendment is to be allowed can be compensated by cost or otherwise. (AIR 2000 S.C. 614, 7 B.K.N.Pillai –v- P. Pillai and another, 2009 (II) OLR (SC) 880, Surender Kumar Sharma –v- Makhan Singh). 13. Now coming to the point that by changing the description of the suit plot i.e. with regard to the description of Sabik Khata and plot number by the proposed amendment of the plaint it is seen that the description of the property in Schedule-B of the plaint was given according to Sabik settlement particulars. It is to be remembered that the suit has been filed in the year, 1979. There is no controversy that the Hal Settlement Operation in Cuttack Town was over during pendency of the suit and new record of right has come into existence and therefore, for proper and effective adjudication and to set at rest the real controversy between the parties, proper description of the suit land according to Hal Settlement are to be given and by doing that no prejudice would be caused to the opposite party-defendants even though such amendment has been sought for belatedly. (2005) 13 S.C.C. 89 (Sajjan Kumar –v- Ram Kishan). 14. In the instant case, as I find the amendments which have been sought for that would further elucidate the facts which are there in the original plaint and the parties have already known the case which they are contesting. 15. It is the settled position of law that if granting of an amendment really sub-serve the ultimate cause of justice and avoids further litigation, the same should be allowed in spite of delay and latches in moving the amendment petition (Vol.1998 (2004) CLT 612 (S.C.) Pankaja and another –v- Yellappa (D) by Lrs. and others. 8 16. There is no controversy with regard to the position of law as envisaged in Order, 6 Rule, 2 of the C.P.C. that the material facts are to be pleaded and not material particulars. If materials facts are there on record, those can be supplemented during evidence by keeping in mind this position of law. The proposed amendment of the plaint and incorporation of facts in Para 13 of the Plaint is to the effect that:- “It may be noted that Ramesh Chandra Pattnaik husband of the plaintiff who is the son-in-law of the original plaintiff was present when the original plaintiff paid a sum of Rs.2000/- to the original defendant No.1 on 10.4.77 and Ajay Jagadev Mohapatra instead of issuing a fresh receipt for that amount made necessary corrections in the first receipt as stated above and passed on the same to the original plaintiff.” And In the first line substitute “Ajay Jagadev Mohapatra” in place of “defendant No.3.” In my considered view, the said facts can be established by adducing evidence by the plaintiff. 17. For the reasons aforesaid, the application for amendment of the plaint as filed by the petitioner stands allowed except Item Nos.3-IX subject to payment of cost of Rs.10,000/- (Rupees ten thousand) to the opposite parties which shall be deposited within two weeks from the date of supply of certified copy of this order. In default of such payment of cost, the application for amendment of the plaint shall stand rejected. The learned Court below shall afford opportunity to the opposite parties (Defendants) in filing the additional written statement, if they so desire after the amendments are carried out and all endeavour should be made by the learned Civil Judge (Sr.Divn.), 9 1st Court, Cuttack for disposal of the matter by end of 1st quarter, 2012. The parties are directed to co-operate with the hearing of the suit and no unnecessary adjournment shall be given in the suit and hearing should be taken up on day to day basis and priority should be given for disposal of the suit which is of the year, 1979. 18. In the aforesaid premises, the impugned order dated 20.09.2011 at Annexure-3 stands modified and the writ petition stands disposed of. …………………… B.K.Misra, J. Orissa High Court, Cuttack The 24th November, 2011/RNS