ORDER
A.K. Padhi, J.
1. The plaintiffs-petitioners
challenge the order dated 17-8-1989 of the
Sub-Judge, Cuttack passed in Title Suit
No. 28 of 1984.
2. The suit was filed for specific performance of contract which was numbered as Title Suit No. 28 of 1984. In the written statement filed by the defendant, the defendant admitted the execution of the agreement of the contract, but took the specific plea that the contract was subsequently rescinded. After the evidence was closed and the case was fixed for argument, the defendant filed an application to amend the written statement to insert the date of recision of the contract and also prayed for some other formal amendments. The learned trial court after considering the prayer for amendment, came to the conclusion that it is necessary for proper adjudication and shall not change the nature and character of the suit.
3. The learned advocate for the petitioners submits that since the amendment which is sought for has been prayed only with the intention to fit with the evidence already adduced, such prayer should not be granted. The learned advocate further submits that at this belated stage the amendment of the written statement should not be granted and it shall also change the nature of the suit.
For the above submission, the learned Advocate for the petitioners relies on the decisions reported in AIR 1967 Orissa 58 ((1967) 33 Cut LT 65) (Khali v. Sadhaba Bewa), AIR 1953 Cal 15 : ((1952) 89 Cal LJ 140) (Nrisingh Prasad Paul v. Steel Products Ltd.), AIR 1949 Ajmer 19 (Beni Pershad Bhargava v. Narayan Glass Works, Makhan-pur), 1971 (2) C.W.R 1004 (Jhara Dasiani v. Magata Das), AIR 1950 Mad 32 : ((1949) 2 MLJ 421), (Bhagavatula Gopalakrishna-murthi v. Dhulipalla Sreedhara Rao ), AIR 1930 PC 57 (1) : (58 MLJ 7) (Siddik Mahomed Shah v. Mt. Saran) and (1983) 55 Cut LT 219 (Hindustan Commercial Corporation, Cuttack v. Bank of Baroda, Cut-tack.)
4. The learned advocate for the opp. party submits that the amendment has been sought for, to make the averments in the written statement more explicit. In the original written statement the pleading was already there. It was pleaded that though an agreement for contract existed the same was rescinded by subsequent act of the parties. Only the date of the recision of the contract was not given in the original written statement which is sought to be introduced by way of amendment. The proposed amendment neither changes the nature and character of the suit nor it can be pleaded that it has been prayed for at a belated stage as the plaintiff has prayed for examination of witnesses and to exhibit documents.
For the above submission, the learned advocate for the opp. party relies on the decisions reported in AIR 1989 Orissa 265 (S.M.M. Abdi v. Janaki Ballav Patnaik ), (1984) 58 Cut LT 287 : (AIR 1985 Orissa 131) (Mst. Satya Sahuani v. Chudamani Sahu), (1984) 58 Cut LT 295 : (AIR 1985 Orissa 130) (Puna Bewa v. Dinabandhu Mangaraj), AIR 1984 Orissa 64 (Rameshlal Santuka v. Suresh-lal Santuka) and (1986) 62 Cut LT 634 (Atran Bibi v. Mst. Umma Kulsum).
5. The plaintiffs had also filed a petition under Order 18, Rules 17 and 17-A read with section 151, C.P.C. praying to permit the plaintiffs to examine and to call Mahendra Kumar Meheta and Mr. J. Singh, Advocate to prove certain documents. Such prayer of the plaintiffs was rejected on the ground that since the plaintiffs had not taken the steps earlier for calling for the documents and for examination of the witnesses, the same cannot be allowed. The defendant also had prayed for recalling P. W. 1 for further cross-examination. The application of the plaintiffs for calling for the documents and to examine some witnesses and also the prayer of the defendant for calling P.W. 1 for cross-examination were rejected by the learned Sub-Judge on 26-8-1989.
6. Both the plaintiffs and defendant filed Civil Revisions Nos. 562 of 1989 and 718 of 1989 respectively and both the revisions were allowed on 24-10-1989 and the plaintiffs have been permitted to call for and exhibit the documents and to examine the witnesses and the defendant has been permitted to recall P.W. 1 and cross-examine him. Hence,
though the evidence of both the sides were closed, by direction of this Court, P.W. I will be recalled for cross-examination and the plaintiffs rlave been permitted to exhibit certain documents and to examine two witnesses.
7. In AIR 1967 Orissa 58 (supra) the matter was heard and posted for judgment. The learned Munsif himself suggested the amendment on the ground that in order to read the evidence in terms of the pleadings, the plaintiff should be given an opportunity to amend the plaint. The order of the Munsif, himself suggesting the amendment was challenged before the High Court. On those circumstances his Lordship has opined:
“………….It was not a part of the duty of the
learned Munsif to have sympathy for the plaintiff for the conflict arising between the pleadings and evidence. If the evidence is not in consonance with the pleadings, it may be thrown out. It is open to the Judge also to accept the evidence if the conflict is not of a serious nature and both can be reconciled. But in no circumstance an amendment should be suggested and allowed by a Judge, merely because evidence and the pleadings do not tally…………..”
In AIR 1953 Cal 15 (supra) his Lordship opined that the “real controversy” test is the basic test which governs the Court’s unchat-ered powers to allow the amendment of pleadings.
The ratio of the decisions in AIR 1949 Ajmer 19 (supra) and AIR 1950 Mad 32 (supra) is same as that of AIR 1953 Cal 15 (supra).
In AIR 1930 PC 57 (supra), 1971(2) CWR 1004(supra) and (1983) 55 Cut LT219(supra) the principle which has been enunciated is in absence of pleading, evidence in that regard is not admissible. That stage comes at the time of appreciation of evidence. Moreover, in this case in the original written statement the defendant had pleaded that the contract had been rescinded subsequent to the agreement between the panics.
In AIR 1984 Orissa 64 (supra) the facts
were that the plaintiff filed a suit for partition. In the written statement the defendant pleaded that on 30-10-1978 there was an oral partition among the co-sharers. Subsequently an application for amendment of the written statement was filed by the defendant and the defendant prayed to omit the year 1978 and substitute it by year 1980. Such prayer for amendment was rejected by the trial court which necessitated the defendant to come up in Civil Revision. While deciding the Civil Revision his Lordship observed ;
In the present case, the defendant’s assertion that the figure ‘1978’ was a typographical error must be accepted as there is no challenge or denial by the plaintiff. The present suit is one for partition between the brothers and the nature and character of the suit is certainly not going to change if the proposed amendment is allowed. On consideration, I hold that it would be just and proper to allow the error to be rectified as prayed for by the defendant for a proper and effective adjudication of the disputes between the parties.”
In S.S.M. Abdi v. Janaki Ballav Patnaik (AIR 1989 Orissa 265) (supra), Justice D. P. Mohapatra speaking for the Court has observed as follows:–
“On perusal of para 26-A which has been introduced by amendment it is clear that all that is attempted to be done by the amendment is to introduce certain statements making averments already existing in the plaint more explicit. What was stated in different paragraphs in the plaint has been attempted to be put in a concise manner at one place in para 26-A. It is therefore manifest that the amendment neither introduces a new case nor a new cause of action against the appellant. The first contention raised by Shri Palit is therefore without substance.”
In (1984) 58 Cut LT 287 (supra) his Lordship opined that amendment of written statement by way of abundant caution and with an object to elucidate and expand the pre-existing facts already pleaded in the original written statement is to be allowed.
In (1986) 62 Cut LT 634 (supra), his Lordship was of the opinion that where entire
basis of defence in the written statement is not substituted, all the assertions continue and only the new assertions are to be added to enable the Court to be in a position to adjudicate upon the real dispute, the amendment of the written statement is to be allowed.
8. After going through the original written statement and prayer for amendment, I am of the opinion that the proposed amendments are necessary for proper adjudication of the controversy between the parties. The delay in filing the petition for amendment can no more be a ground since the plaintiffs themselves prayed to exhibit documents and to examine some witnesses.
9. After analysing the case on record it is clear that all that is attempted to be done by amendment is to introduce the date of the recision of the contract for making averment already existing in the written statement more explicit. The amendment if allowed shall neither introduce a new case nor a new cause of action and no illegality has been committed by the learned Sub-Judge while passing the order dated 17-8-1989 allowing the amendment and the same should not be interfered with.
In the result, the Civil Revision is dismissed, hut in the circumstances of the case, there shall be no order as to costs.