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-Mar-2024 17:53:09 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 26 OF 2024 (An application under Articles 226 & 227 of the Constitution of India) ***** Malati Nayak …… Petitioner Rudra Prasad Kar and others -Versus- .…… Opp. Parties Advocates appeared: For Petitioner : Mr. Sidhartha Mishra, Advocate For Opp. Parties : Mr. Tusar Kumar Mishra, Advocate (For Opp. Party No.1) being assisted by Mr. H.E. Haque, Advocate (For Opp. Party No.2) Mr. S.S. Rao, Senior Advocate Mr. Bibekananda Bhuyan, Advocate (For Opp. Party Nos.3 & 4) Mr. Bibhuti Bhusan Mishra, Advocate (For Opp. Party No.5)
Decision
------------------------------------------------ Heard and disposed of on 19.03.2024 ---------------------------------------------- JUDGMENT K.R. Mohapatra, J. 1. This matter is taken up through hybrid mode. 2. Order dated 27th December, 2023 (Annexure-4) passed in C.S. No.296 of 2023 is under challenge in this CMP, whereby learned Senior Civil Judge, 1st Court, Cuttack rejected an CMP No. 26 OF 2024 Page 1 of 9 // 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 application filed by the Plaintiff-Petitioner under Order VI Rule 17 CPC for amendment of the plaint. 3. Mr. Mishra, learned counsel for the Plaintiff-Petitioner submits that the suit has been filed for a declaration that the Plaintiff is the exclusive owner of the suit schedule property and the Registered Sale Deed dated 17th October, 2022 executed by Defendant No.1 in favour of Defendant No.2 as well as the Registered Gift Deed dated 21st March, 2022 executed by Defendant No.3 in favour of Defendant No.4 are illegal, invalid, void and not acted upon. The Plaintiff also prays for a declaration of permanent injunction against Defendant Nos.2 to 4 to restrain them from interfering and disturbing with peaceful possession of the plaintiff over the suit schedule property. Before commencement of trial, an application for amendment was filed with the following schedule of proposed amendment: “SCHEDULE OF THE PROPOSED AMENDMENTS That, in the last line of para- 11 of the plaint, 1. after the word, "one", the following, sentence, is to be added ",being violative of the terms & conditions embodied in the compromise petition, which form part of the order/ Decree Dt. 20.03.2019 passed in O.J.C. No. 2921 of 2001 & if found valid, then the Plaintiff is entitled to purchase the same, exercising right of pre-emption." 2. That, at page -7 of the plaint, at the end of 4th line of 1st para thereof, after, the word "document,", the following sentence is to be added, ",being violative of the terms & conditions embodied in the compromise petition, which form part of the order/ Decree Dt.20.03.2019 passed in O.J.C. No.2921 of 2001 & if found valid, then the Plaintiff is entitled to purchase the same, exercising right of pre-emption." CMP No. 26 OF 2024 Page 2 of 9 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 // 3 // 3. That, at-prayer (b) of the plaint, after, the word, "void," the following sentence is to be added, ", & not binding on the Plaintiff, being violative of the terms & conditions stipulated in the compromise petition, which form part of the order decree Dt.20.03.2019, passed in O.J.C. No. 2921 of 2001. Alternatively, in case, those are found valid, then, the Plaintiff is entitled to purchase by property mentioned paying/depositing the valuation mentioned in the two the right of pre- respective documents, exercising emption, through process of law.” therein, the 4. Mr. Mishra, learned counsel further submits that the petition under Order VI Rule 17 CPC is bona fide. Prayer for pre-emption could not be made earlier, which is necessary for just adjudication of the suit. In order to introduce a prayer to exercise the right of pre-emption, foundational pleading was also sought to be introduced. It is his submission that the amendment should be considered liberally when it does not cause any irreparable loss to the Defendants. In the instant case, no serious injustice or irreparable loss would be caused to the Defendants if the amendment is allowed. Learned trial Court without taking into consideration the necessity of amendment for just adjudication of the suit and that the prayer sought to be introduced does not change the nature and character of the suit, rejected the same by a cryptic order under Annexure-4. 4.1 He also relied upon the case of Haridas Aildar Thadani and others –v- Godrej Rustom Kermani, reported in AIR 1983 SC 319, in which it is held as under: “……..Neither the nature of the suit was altered nor was there any question of any valuable right of limitation having accrued to the defendant being taken away by the proposed amendment arise. In case of Pirgonda Hongonda Patil v. Kalgonda Shilgonda Patil 1957 SCR CMP No. 26 OF 2024 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 // 4 // is to find out whether 595 this Court has held that the test for allowing the the proposed amendment amendment works any serious injustice to the other side. It is well settled that the Court should be extremely liberal in granting prayer of amendment of pleading unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional Court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances…...” He also relied upon the case of Sulochana Parida and others –v- Kamini Parida and others, reported in 2023 (II) OLR 730, wherein at Paragraph-8, it is held as under: to Since refuse prayer. trial Court should have considered Considering the submissions of learned counsel “8. for the parties, this Court finds that hearing of the suit has not yet commenced. Of course, the suit is of the year 2003 and is pending before learned Civil Judge (Junior the Division), 2nd Court, Cuttack. Only because pecuniary jurisdiction of the Court will be taken away by the amendment of the plaint, the same cannot be the sole ground the the Plaintiffs/Petitioners have prayed for declaration that the deed of partition as aforesaid to be null and void, learned the amendment to incorporate the pleadings as well as prayer with regard to validity of the RSD dated 30th April, 1999, as it is an consequence of such partition, which is under challenge. If the Petitioners/Plaintiffs are not permitted to incorporate such amendment at this stage, it may lead to multiplicity of litigations. In order to shorten the time for complete adjudication of the lis between the parties with regard to validity of partition as well as consequential execution of sale deed, this Court feels that learned trial Court should have allowed the amendment; which is of course subject to the question of limitation. If objection to the prayer for amendment is raised on the ground of limitation, the amendment sought for should not be thrown out at the threshold, more particularly when objection on limitation depends upon interpretation of materials on record. In such cases, question of limitation can also be decided by framing an issue to that effect.” CMP No. 26 OF 2024 Page 4 of 9 // 5 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 He, therefore, submits that the impugned order under Annexure-4 is not sustainable and is liable to be set aside and the amendment sought for by the Petitioner should be allowed. 5. Mr. Mishra, learned counsel for the Opposite Party No.1 made elaborate submission on the maintainability of the suit as well as on the application for amendment. It is his submission that the Petitioner by way of amendment seeks to challenge the order of compromise passed by this Court in OJC No.2921 of 2001, which is not permissible. Since the suit schedule property has already been divided pursuant to the order of compromise in OJC No.2921 of 2001, the prayer to exercise right of pre- emption is also not sustainable. It is his submission that by introducing the amendment, the Plaintiff wants to withdraw the admission already made in the plaint itself. Mr. Mishra, learned counsel for the Plaintiff-Petitioner further submits that at Paragraph-8 of the plaint, the Plaintiff has categorically stated “….However the Plaintiff has/had every respect to the order of compromise of the Hon’ble High Court of Orissa and bound by same.” He also drew attention to the averments made in Paragraph-9 of the plaint, wherein it is stated that after compromise, the Plaintiff and Defendant No.3 jointly got an area of Ac.0.123 decimals out of schedule land, whereas the Defendant No.1 got an area of Ac.0.054 decimals out of the same. It is, however, alleged that in spite of the order of compromise, no physical delivery of possession was made to the parties till date. The Plaintiff still possesses the entire suit schedule land peacefully, openly and uninterruptedly to the CMP No. 26 OF 2024 Page 5 of 9 // 6 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 knowledge of all. Thus, self-contradictory statements are being made in the plaint itself. He, therefore, submits that when the Plaintiff accepts the compromise, question of exercising the right of pre-emption does not arise. 6. Mr. Rao, learned Senior Advocate appearing for Defendant No.2-Opposite Party No.2 submits that the Defendant No.2 purchased the suit schedule property from Defendant No.1, which fell to his share pursuant to the compromise passed by this Court in OJC No.2921 of 2001. Reiterating the submission of Mr. Mishra, learned counsel for the Opposite Party No.1, he submits that the amendment is not at all necessary for just adjudication of the suit. It is only made to make the pleadings clumsier and to get benefit out of it. The amendment sought for is not at all bona fide. Hence, learned trial Court has committed no error in dismissing the petition for amendment. 7. Mr. Bhuyan, learned counsel for Defendant Nos.3 & 4- Opposite Party Nos.3 and 4 submits that the prayer for pre- emption is barred by limitation, as it should have been made within one year from the date of execution of the sale deed and gift deed. Admittedly, the petition for amendment was filed on 3rd October, 2023, whereas the sale deed was executed on 17th October, 2022 and the gift deed was executed on 21st March, 2022. Thus, the amendment sought for being barred by limitation, should not be allowed. If the case of the Plaintiff is accepted in toto, the prayer of pre-emption would not be maintainable as it does not satisfy the criteria of either Section 22 of the Hindu Succession Act, 1956 or Section 4 of the CMP No. 26 OF 2024 Page 6 of 9 // 7 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 Partition Act, 1893. A prayer which is not legally permissible should not be allowed to be introduced by way of amendment. 7.1. It is his submission that pursuant to the order of compromise, Ac.0.123 decimals of the land was recorded in favour of the Plaintiff and Defendant No.3 and Defendant No.1 got an area of Ac.0.054 decimals out of the property involved. Subsequently, the Plaintiff filed C.S. No.1037 of 2022 for partition and the suit was decreed on compromise allotting separate share to the plaintiff and Defendant No.3. Final decree proceeding has already been passed in the said suit. Thus, the question of exercising right of pre-emption does not arise in the case at all. He, therefore, submits that learned trial Court has committed no error in dismissing the petition for amendment. 8. Mr. Mishra, learned counsel for Opposite Party No.5 also supports the case of the Opposite Party Nos.1 to 4. 9. Taking note of the submissions made by learned counsel for the parties and on perusal of the record, this Court finds that the petition for amendment was filed prior to commencement of trial. Thus, the restriction under proviso to Order VI Rule 17 CPC does not apply to the present case. There cannot be any controversy to the settled position of law that an amendment, which is necessary for just adjudication of the suit should be considered liberally. The Hon’ble Supreme Court in the case of Life Insurance Corporation of India –v- Sanjeev Builders Private Limited and another, reported in 2022 SCC OnLine SC 1128 has laid down the guidelines to entertain an application for amendment. In the instant case, perusal of the petition for CMP No. 26 OF 2024 Page 7 of 9 // 8 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 amendment under Annexure-2 does not disclose, as to how, the amendments sought for are necessary for just adjudication of the suit. Admittedly, an order of compromise has been passed by this Court in OJC No.2921 of 2001 allotting Ac.0.123 decimals jointly in favour of the Plaintiff and Defendant No.3 and Ac.0.054 decimals in favour of Defendant No.1. Subsequently, C.S. No.1037 of 2022 was filed by the Plaintiff-Petitioner for partition in respect of Ac.0.123 decimals, which was also decreed on compromise. Final decree has already been passed in the said suit. Thus, the question of exercising right of pre- emption against any of the parties to the suit does not arise at all. Learned trial Court has rightly held in the impugned order under Annexure-4 that circumstances contemplated under Section 22 of the Hindu Succession Act, 1956 read with Section 4 of the Partition Act, 1893 as well as Section 44 of the Transfer of Property Act, 1882 operate in a limited sphere. In the instant case, a bare reading of the pleading as well as petition for amendment does not make out any case to exercise the right of pre-emption. 10. It is submitted by the learned counsel for the Petitioner that a relief to exercise the right of pre-emption can be sought to be introduced by way of amendment of the plaint. No doubt, Section 9 of Civil Procedure Code, 1908 does not bar a prayer for pre-emption to be made in a civil suit. But, in the instant case, law does not permit to the Petitioner to exercise such a right. When the right of pre-emption is not permissible under law to be exercised by the Plaintiff in the facts and CMP No. 26 OF 2024 Page 8 of 9 // 9 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Mar-2024 17:53:09 circumstances of the case, amendment to that effect should not be allowed and learned trial Court has committed no error in doing so. The rest of the amendments sought for are only foundational pleadings to introduce a prayer for pre-emption. Hence, those are not necessary to be introduced by way of amendment. Accordingly, this Court finds no infirmity in the impugned order under Annexure-4. 11. In view of the discussions made above, the CMP stands dismissed. Urgent certified copy of this judgment be granted on proper application. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated 19th March, 2024/Madhusmita CMP No. 26 OF 2024 Page 9 of 9