ARRANTASWAR DEB Vs. HARIHAR ACHARAYA

JUDGEMENT

(1.) THE Petitioners, who were the Plaintiffs in Title Suit No. 294 of 1999 pending in the Court of the Learned Civil Judge (Jr. Divn.), Puri being aggrieved with the order of the said Court date 12.8.2004 under Annexure -5, allowing the prayer of the Opp. Party -Defendant for amendment of the written statement, has approached this Court for quashing of the same.

(2.) THE present Petitioners as Plaintiffs filed the suit for declaration that the Plaintiffs 1 and 2 are the public deities and therefore the entire body of the villagers has the right to worship and perform Sebapuja. The Plaintiffs also prayed for a declaration that Defendant No.1 is not the sale marfatdar of the deities -Plaintiffs 1 and 2 and has no exclusive right of worship and Sebapuja. Besides that a prayer was also made in the said suit for permanent injunction restraining the Defendant from debarring the villagers to worship and perform Sebapuja of the deities. In the said suit the sale Defendant entered appearance and filed written statement. Evidence from both sides were taken in the Court below and the matter was posted for argument. At that stage a petition was filed by the. sale Defendant who is the present Opp. Party in this Writ Petition praying for an amendment to the written statement i.e. in respect of substituting the word 'rather' by the word 'and' in Paragraph -8 of the said written statement on the ground that such amendment was necessary for correcting a typographical mistake. The prayer for amendment was objected to on the ground that it was filed at a very belated stage and that too after closure of evidence. In was also the case of the Plaintiffs that by the proposed amendment the nature and character of the suit is going to be changed.

(3.) MR . A.K. Mohapatra, Learned Counsel appearing for the Petitioners by placing reliance on several decisions of the Apex Court as reported in (2008) 7 SCC 85, Gautam Sarup v. Leela Jetly and others, (2209) 10 SCC 84, Revajeetu Builders and Developers v. Narayanaswamy and Sons and others and also on a decision of this Court as reported in 2010 (II) OLR 871, Barendra Biswal v. Rama Roy @ Das and another contended that when the amendment petition is filed only to linger the mater and when the party has tried to introduce a new store and also wants to withdraw the earlier admission made in the pleading, the prayer for amendment should be disallowed. Mr. Mohapatra, Learned Counsel very strenuously contended that after the amendment, incorporated to the Civil Procedure Code in the year 2002 and in view of the proviso inserted to order 6, Rule 17 of the Civil Procedure Code (hereinafter referred to as the ('C.P.C.) the Learned Trial Judge should not have allowed the amendment of the written statement after commencement of the trial and the Learned Trial Court ignored the mandatory provision of law resulting in miscarriage of justice. It is accordingly urged on behalf of the Petitioners that impugned order be quashed.