Orissa High Court: In an application under Article 227 of the Constitution of India against the Civil Judge (Senior Division), Cuttack, whereby, the plaintiff’s application for amendment of plaint under Order VI Rule 17 read with Section 153 of the Code of Civil Procedure, 1908 (‘CPC’), was rejected, Krushna Ram Mohapatra, J. dismissed the application for being devoid of merit. The Court opined that if the proposed amendment is allowed, it will change the nature and character of the suit, thereby expanding the scope and ambit of the suit, which is not permissible in law.
In the matter at hand, the plaintiff’s case was that the deed of acknowledgement of defendant’s adoption was invalid and hence, by virtue of the same, the defendant does not acquire any right over the suit property. The defendant’s case was that his adoption was valid with all the formalities and a registered acknowledgement deed of adoption was executed on 22-08-1989. The plaintiff sought amendments in the plaint regarding the declaration that, ‘the Deed of Acknowledgement of Adoption dated 22-08-1989 is illegal and invalid and the defendant had not acquired any right through the said Deed as adopted son’. Alternatively, the plaintiff sought that if it is held that the defendant is the adopted son, let there be a preliminary decree for partition be passed allotting 2/3rd share in favour of the plaintiffs out of the disputed 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 plaintiff’s share may be delivered in their favour in execution of the said decree.
The Trial Court had rejected the plaintiff’s petition on the ground that the suit was at the far end of the trial and the plaintiff’s evidence was closed, and defendant’s witnesses were examined. The Trial Court had also concluded that the suit, being 25 years old and the High Court was pressing hard for disposal of year-old suits, the petition for amendment should not be entertained.
The Court noted that the Plaintiff was not pressing the proposed amendment regarding the Deed of Acknowledgement of Adoption. The Court cited Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117, wherein it was 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.
The Court noted that the suit is of the year 1996 and it is at the fag end of the trial, the Defendant’s cross-examination is going and four witnesses on his behalf were already examined. Thus, the Court opined that if the proposed amendment is allowed, it will change the nature and character of the suit, thereby expanding the scope and ambit of the suit, which is not permissible in law. Further, the Court said that there is no legal bar for the Plaintiffs seeking relief for partition by filing a properly constituted suit, but amending the plaint, will complicate the matter and as the issue for partition must be decided along with other reliefs sought for, the witnesses might be recalled by the Defendant, and he may re-examine his witnesses.
Thus, the Court refused to interfere with the impugned order and dismissed the petition for being devoid of merits.
[Manjulata Tripathy v. Ashok Kumar Satpathy, 2023 SCC OnLine Ori 6519, Decided on: 01-12-2023]
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