The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Mar-2024 15:16:06 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.01 OF 2024 Pratap Beura and another …. Petitioner Mr. Amit Prasad Bose, Advocate -versus- Rajkishore Beura and others …. Opp. Parties Mr. Anjan Kumar Jena, Advocate (For OPP. Party Nos.1 to 3)
Legal Reasoning
Mr. Sarada Prasanna Sarangi, Advocate (For OPP. Party No.4) Mr. Ajodhya Ranjan Dash, Advocate (For OPP. Party Nos.5 to 8) Order No. 03. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 21.03.2024 This matter is taken up through hybrid mode. Order dated 19th December, 2023 (Annexure-1) passed in CS No.305 of 2020 is under challenge in this CMP, whereby learned Civil Judge, Kujang rejected an application filed under Order VI Rule 17 CPC filed by the Plaintiffs-Petitioners for amendment of the plaint. 3. Mr. Bose, learned counsel for the Petitioners submits that the suit has been filed for partition and to declare that the sale deed Nos.1102 and 1103 dated 10th June, 1992 executed by Defendant No.1 to 3 in favour of the Defendant Nos.4 to 6 are beyond their entitlement and is void and illegal. The Plaintiffs also prayed for permanent injunction against the Defendant Nos.3 to 6 and persons claiming under them. The Plaintiffs at para 4, 5 and 7 of the plaint has categorically stated that the Defendant Nos.1 to 3 are entitled to eight Anna share in the suit property i.e., 01.500 sq links and the Plaintiffs are also entitled to get equal share in the suit property. But, the Defendant Nos.1 to 3 for their legal necessity, alienated the property under the impugned sale Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Mar-2024 15:16:06 // 2 // deeds beyond their share without taking consent of the Plaintiffs. A prayer was therefore made to set aside the sale deeds. The Defendant Nos.1 to 3 in their written statement have stated that there has been an amicable partition between the Plaintiffs and Defendants Nos.1 to 3. So the prayer for further partition of the property would not be maintainable. The other Defendants also supported the case of the Defendant Nos.1 to 3. In view of the averments made that there has already been a complete partition, the Plaintiff before commencement of the trial made an application for amendment of the plaint to delete the prayer for partition and also to incorporate para 7(A) to the plaint stating that the suit land being the undivided joint property of Plaintiffs and Defendant Nos.1 to 3, sale of specific portion of the suit property by Defendant Nos.1 to 3 in favour of the Defendant Nos.4 to 6 is void and illegal. The Plaintiffs also sought for correction of the valuation of the suit. It is his submission that the amendment sought for is necessary for just adjudication of the suit as the Defendants prior to amicable partition of the suit property alienated the specific share in the suit property. 4. It is further submitted that there is no legal impediment to entertain an application under Order VI Rule 17 CPC, as on the date of adjudication of the petition under Order VI Rule 17 CPC, trial of the suit had not commenced. These aspects were not taken into consideration by learned trial Court while adjudicating the matter. Learned trial Court, being swayed away with the restrictions of the Proviso to Order VI Rule 17 CPC, rejected the petition. Admittedly, the Proviso to Order VI Rule 17 CPC is not applicable to the case of the Petitioners as the trial of the suit has not commenced. He, therefore, prays for setting aside the impugned order under Annexure-1 and to allow the petition for amendment, as prayed for. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Mar-2024 15:16:06 // 3 // 5. Learned counsels for the contesting Opposite Parties submit that the Petitioners had earlier filed an application under Order VI Rule 17 CPC, which was withdrawn without seeking any liberty to file a fresh one. Thus, the petition under Order VI Rule 17 CPC is not maintainable. The nature of amendment sought for suggests that the Petitioners could have prayed for amendment even before filing of the written statement. As observed by learned trial Court, the Plaintiffs- Petitioners, after taking several adjournments, filed an application for amendment. The amendment sought for if allowed will prejudice the Defendants-Opposite Parties. Thus, they pray for dismissal of the CMP. 6. Taking note of the submission made by learned counsel for the parties, this Court finds that the Petitioners had earlier moved an application for amendment under Order VI Rule 17 CPC. On 18th July, 2023, learned counsel for the Plaintiffs filed a memo not to press the said application, which was allowed. No liberty was granted to the Plaintiffs-Petitioners to move a specific petition under Order VI Rules 17 CPC, while allowing the prayer for withdrawal of the petition under Order VI Rule 17 CPC. Thus, the subsequent application under Order VI Rule 17 CPC on the self same prayer is not maintainable as the principle of res judicata also applies to the different stages of the same suit or proceedings. 7. From the averments made in the plaint, it appears that the Plaintiffs have already taken a plea that the Defendants have alienated the property beyond their share. By virtue of the amendment, the Petitioners want to incorporate a pleading that Defendant Nos.1 to 3 could not have sold specific portion of the land before effecting partition. The plea sought to be introduced is taken care of by the provision under Section 44 of the Transfer of Properties Act, 1882. Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 22-Mar-2024 15:16:06 // 4 // 8. It also appears that the Plaintiffs want to delete the prayer for partition as the Defendants-Opposite Parties have pleaded that there has already been partition by metes and bounds. If the Petitioners accepts that there has been an earlier partition by metes and bounds, they are not entitled to introduce the plea as set out in the proposed amendment. Thus, considering the proposed amendment from every angle, it is not clear as to how the same is necessary for just adjudication of the suit. 9. 10. As such, I find no infirmity in the impugned order. Accordingly, the CMP, being devoid of any merit, stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4