Decided on December 20,1978

Damharu Alias Chamari Bhoi And Ors. Appellant
Kapurchand Patra And Anr. Respondents


N.K.Das, J. - (1.) DEFENDANTS are Petitioners against an order rejecting the petition for amendment of written statement. Notice was served on the opposite parties but there is no appearance from their side.
(2.) ON the materials available on record at the time of hearing, It appears that a case of adverse possession is to be pleaded to the written statement. Accordingly, a petition was filed by the counsel for the Defendants for amendment of the written statement incorporating the plea of adverse possession. The trial Court has rejected the petition on the ground that only one of the Defendants has signed the petition. Before the Court, there was a petition for amendment of the written statement. Admittedly, the counsel appearing for all the Defendants has signed and one of the Defendants has also signed the petition. It was for the Court to see whether the petition for amendment was to be allowed or not. Simply because all the Defendants had not signed and only one Defendant had signed the petition, the Court below illegally exercised its jurisdiction in rejecting the petition for amendment. Therefore, the order is not sustainable. Even in case of pleadings. It has been held that if there are certain such defects, these are procedural irregularities and not illegalities affecting jurisdiction of the Court -Rajwdra Prasad v. Gopal Prasad, A.I.R. 1929 Pat. 51, Radakishan v. Wali Mohammed, A.I.R. 1956 AP. 133 and Karam Singh v. Ram Rachpal Singh : A.I.R. 1977 H.P. 28. It has been held in those decisions that opportunity should be given to the parties to rectify the defects. In the present case, if the trial Court felt that the signatures of all the Defendants were necessary, then it should have given opportunity to the Defendants to rectify the defect and the Court should not have straightaway rejected the petition for amendment.
(3.) IN the result, the revision is allowed and the impugned order is set aside. The trial Court should give opportunity to rest of the Defendants to sign the petition and dispose of the petition according to law. As there is no appearance for the opposite parties, I make no order as to costs. The records of the case be remitted back to the Court below immediately.;

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