The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 16:54:14 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 17986 OF 2011 Ananta Charan Behera and others Petitioners Mr. Niranjan Lenka, Advocate …. Girish Chandra Das …. Mr. Pravat Kumar Muduli, Advocate Opp. Party -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 18.12.2023 5. 1. This matter is taken up through hybrid mode. 2. Order dated 20th May, 2011 (Annexure-5) passed by learned Civil Judge (Junior Division), Udala in C.S. No.52 of 2004 is under challenge in this writ petition, whereby an application filed by the Plaintiff-Opposite Party under Order VI Rule 17 CPC, has been allowed. 3. Mr. Lenka, learned counsel submits that the Defendants are the Petitioners in this writ petition. After examination of four witnesses on behalf of the Plaintiff, an application under Order VI Rule 17 CPC was filed to amend the plaint as follows: “Proposed Amendment In Para 5 of the plaint in 5th line after the word 1. “North”, the words, “of the suit land”, be deleted and “their land” be written and in the 6th line the word “Northern” be deleted and “Southern” be written. 2. word “North”, “South” be written.” In schedule ‘A’ in fourth line and fifth line instead of 4. It is submitted that admittedly the amendment to the plaint sought for was after commencement of trial. The petition under Order VI Rule 17 CPC does not disclose that in spite of due diligence, the plea sought to be introduced by way of amendment could not have been taken by the Plaintiff before commencement of trial. Further learned trial Court has not taken Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 16:54:14 // 2 // into consideration the applicability of proviso to Order VI Rule 17 CPC to the proposed amendment and allowed the application. Hence, this CMP has been filed. 5. Mr. Muduli, learned counsel for the Plaintiff-Opposite Party submits that the amendment sought for is clarificatory in nature. A bona fide mistake in Paragraph-5 of the plaint was sought to be corrected by way of amendment. The Defendants- Petitioners have also admitted the field position and the case of the Plaintiff in their written statement at Paragraph-15 of their written statement. Hence, the Defendants will not be prejudiced by allowing such amendment. Hence, for the ends of justice, learned trial Court allowed the amendment. He also relied upon the decision in the case of Life Insurance Corporation of India –v- Sanjeev Builders Private Limited and another, reported in 2022 SCC OnLine SC 1128, wherein the Hon’ble apex Court at Paragraph-70(vii) held as under: “70 (vii). Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.” He, therefore, submits that the impugned order under Annexure-5 should not be interfered with. 6. Considering the submissions made by learned counsel for the parties and on perusal of the petition for amendment at Annexure-4, it appears that the Plaintiff-Opposite Party stated that by way of amendment, he wants to correct the typographical mistakes at Paragraph-5 of the plaint. For better appreciation, Paragraph-5 of the plaint is quoted hereunder: “5. That, the defendants are having their home and home stead land adjacent to the south of the suit land and being greedy to grab the suit land, all of a sudden raised a force on 15.9.04 over the suit land encroaching A.0.24 decimals Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 16:54:14 // 3 // towards the north of the suit land and also removed the northern side fence of plaintiff with a view to amalgamate the suit land with their home stead land.” However, Paragraph-15 of the plaint reads as under: to “15. That, the true facts of the case is that, Plot No 457, 458 and 450, are situating in a straight-line formula from North end to Southern and defendants were possessing the plot No. 459 and Kanhu Majhi was possessing the plot No.458 and suit land as a matter of right since long. But on dt.28.5.98, defendants exchanged the lands from plot No.458 against 459 vide due permission and vide Regd, deed. Simultaneously as Kanhų Majhi was possessing the suit land situating adjacent towards the northern side of plot No. 458, he also expressed his desire to alienate the same in favour of it and defendants, and defendants, also agreed accordingly, on the same day, i.e., on dt.28.5.93, the said alienation was effected vide agreement through non-judicial stamp papers followed with delivery of possession for consideration of 1000/-. Since that day, the defendants are possessing plot No.458 and suit land openly, peacefully, in interruptedly and hostively to the knowledge of all that too by fencing it around by throney plants/twigs and by planting various fruit-bearing and other trees over their said boarder area and other areas. It is worth noting here that, the suit land was situating at a lower grade and defendants have made it higher by putting earth over it and the planted fruit bearing trees are producing good variety of fruits and as such only being greedy to it and with a malafide intention to grab the land, this suit has been filed with many a false allegations as stated earlier and as such this suit demands its dismissal on various grounds as stated earlier. The defendants have already acquired their title over the suit land for possessing it hostively for more than the statutory period.” From the above, it appears that the Plaintiff at 7. Paragraph-5 stated that the Defendants have encroached upon Ac.0.24 decimals towards North of the suit land and also removed the Southern side fence of the Plaintiff with a view to amalgamate the suit land with their homestead land. But, by way of amendment, the word “Northern” in the 6th line to be substituted by the word the Plaintiff wanted to delete “Southern”. It is submitted by Mr. Lenka, learned counsel for the Petitioners that the witnesses of the Plaintiff have adduced Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Dec-2023 16:54:14 // 4 // evidence in the line of the averment made at Paragraph-5 of the plaint. 8. On perusal of the plaint, it does not appear that in spite of due diligence, the Plaintiff could not have taken such a plea before commencement of trial. No explanation in that regard has been given in the petition under Order VI Rule 17 CPC. Learned trial Court while adjudicating the matter also did not take into consideration the mandate of proviso to Order VI Rule 17 CPC. The ratio decided in the case of Life Insurance Corporation of India (supra) is of no assistance to the Plaintiff-Opposite Party in as much as by way of amendment, the Plaintiff does not want to introduce an additional or a new approach to the averments made in the plaint. By virtue of the amendment, the Plaintiff wants to take away the effect of pleading at Paragraph-5 of the plaint. 9. In view of the discussions made above, the impugned order under Annexure-5 is not sustainable and hence, the same is set aside. It is, however, made clear that since the suit is of the year, 2004, learned trial Court should make all endeavour to see that it is disposed of at the earliest, if the same is still pending. 10. 11. The writ petition is accordingly disposed of. Interim order dated 12th July, 2011passed in Misc. Case No.10140 of 2011 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4