ACHHUTA MALLICK Vs. MAGU MALLICK
LAWS(ORI)-1973-7-2
HIGH COURT OF ORISSA
Decided on July 13,1973

ACHHUTA MALLICK Appellant
VERSUS
MAGU MALLICK Respondents

JUDGEMENT

- (1.) THE following genealogy as given in the plaint would show the relationship of the parties. THE plaintiff's case is that the sale deed executed by Magu (defendant No. 1) in favour of defendants 2 to 6 is void. Defendants 2 to 6 filed a written statement alleging that the first defendant is the natural born son of Kanhu and validly executed the sale deed. THE plaintiff filed an application for amendment of the plaint on 3-11-1971 alleging that Magu (defendant No. 1) was the natural born son of Kanhu but had been adopted away to one Radhu Mallick of Sibapur on 3-3-1934 and there was a registered document dated 19-7-1955 acknowledging the adoption. This amendment was rejected by the learned Munsif saying that it changes the nature of the suit. THEre was also a further prayer for amendment that Kanhu did not die in 1935 but died in 1945. That also was rejected. This Civil Revision has been filed against the order refusing the amendment.
(2.) DOUBTLESS, the facts stated in the plaint are somewhat different from those in the amendment application. Originally the plaintiff stated that defendant No. 1 is the son of one Radhu Mallick and he did not belong to the family of Kanhu. The second part of the statement is obviously wrong as it is admitted now in the amendment that defendant No. 1 is the natural born son of Kanhu. The first part of the statement in the plaint that he was the son of Radhu Mallick obviously did clarify the position that he was the adopted son of Radhu Mallick. In the amendment application the plaintiff has averred, that despite the existence of registered acknowledgement of the adoption showing that the first defendant is the adopted son of Radhu Mallick and natural born son of Kanhu, the advocate for the plaintiff did not properly appreciate the instructions and committed the error in drafting the plaint. It is a matter of common knowledge that very often plaints are drafted by advocates without applying their mind to the documents given by the parties. It might not have been always deliberately done but such instances have very often come to the notice of Courts. This appears to be a case of that type. Otherwise the adoption of Magu by Radhu by acknowledgment in a registered document could not have been ignored. In such cases parties should not be allowed to suffer for the negligence or misconception of their advocates if the true picture is subsequently presented to the Court and sufficient explanation is offered why such errors were committed. I am, therefore, inclined to accept the plaintiff's explanation that it is due to the advocate not properly appreciating the instruction of the client that the first defendant was described as an utter stranger to the plaintiff's family. The plaintiff's present amendment is supported by document. The question would be altogether different whether such an averment would be established during trial. The other document would also be allowed. It is also a matter of common knowledge that a mistake can be committed with reference to the date of death. To ask for a change of the date of death does not alter the nature of the suit. I would accordingly allow both the amendments, set aside the impugned order of the learned Munsif and allow the Civil Revision. There will be no order as to costs. Application allowed.;


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