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: 04-Jan-2024 17:50:07 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 22434 OF 2011 Saraswati Sahoo Petitioner Mr. Samir Kumar Mishra, Senior Advocate being assisted by Ms. Sushrita Sahoo, Advocate …. Jadi Behera and others -versus- ….
Legal Reasoning
Opp. Parties Mr. Pratik Nayak, Advocate (for Opp. Party Nos.1 to 3) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 03.01.2024 5. 1. This matter is taken up through hybrid mode. 2. Order dated 8th July, 2011 (Annexure-4) passed by learned Civil Judge (Senior Division), Nilgiri in C.S. No.109 of 2006 is under challenge in this writ petition, whereby the petition for amendment of the plaint filed by the Plaintiff- Petitioner, has been rejected. 3. Mr. Mishra, learned Senior Advocate appearing for the Plaintiff-Petitioner submits that the suit has been filed for a declaration that the Plaintiff is the wife of late Bhagirathi Sahu, the son of Defendant No.3. It is also prayed that Lot No.1 of ‘Kha’ Schedule property is the self-acquired property of said Bhagirathi Sahu and also for partition of Lot Nos. 2 to 4 of ‘Kha’ Schedule property. Before commencement of trial, an application was filed for amendment of the plaint stating that there are some inadvertent mistakes in the cause title as well as in the pleadings in the plaint. The Plaintiff-Petitioner also sought for introduction of certain other properties to the suit schedule for partition. Learned trial Court holding that the petition for 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: 04-Jan-2024 17:50:07 // 2 // amendment was filed at a belated stage and she has not exercised due diligence in incorporating the facts in the plaint, rejected the same. 4. It is his submission that proviso to Order VI Rule 17 CPC is not applicable to the instant case, as trial of the suit has not yet commenced. Further the amendment sought for does not change the nature and character of the suit. The same is necessary for just adjudication of the suit. Although the Plaintiff had sought for amendment of the plaint earlier, but that should not be a ground to deny the amendment sought for, which is imperative for just adjudication of the suit. Any prejudice caused to the Defendants may be compensated by payment of reasonable cost. In order to avoid multiplicity of litigation and to bring an end to the dispute between the parties, the amendment sought for should have been allowed. These aspects were not taken into consideration by learned trial Court. Hence, he prays for setting aside the impugned order under Annexure-4 and to allow the petition for amendment. 5. Mr. Nayak, learned counsel for the Opposite Party Nos.1 to 3 vehemently objects to the same. It is his submission that before filing the instant application for amendment, the Plaintiff had sought for amendment of the plaint on four occasions. At no point of time, the Plaintiff had sought for amendment of this nature. The Plaintiff was thoroughly negligent in pursuing her case. She has filed the suit with an intention to grab the properties of Defendants and to drag them to litigation. The suit is pending since 2006 and the amendment was sought for in the year, 2011. Delay in filing such petition for amendment was 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: 04-Jan-2024 17:50:07 // 3 // also not explained in the petition for amendment. Hence, learned trial Court has committed no error in rejecting the petition. 6. Considering the rival contentions of the parties and on perusal of the petition for amendment at Annexure-2, this Court finds that apart from addition of certain properties to the suit schedule, the Plaintiff had also sought for correction of some inadvertent errors in the cause title as well as in the pleadings of the plaint. On a perusal of the petition for amendment, it appears that the amendment, if allowed, will not change the nature and character of the suit and will not take away the admission already made n the plaint. Since the suit is for partition and the Plaintiff wants to incorporate some more properties to the suit schedule for partition, it should have been allowed to avoid further litigation and complicacies. 7. No doubt, the Plaintiff had sought for amendment of the plaint on previous occasions. She should have been more diligent in bringing the proposed amendment on earlier occasions. Be that as it may, the same cannot be a ground to reject the petition for amendment. In view of the above, this Court finds that delay in filing the petition for amendment and negligence on the part of the Plaintiff can be compensated by payment of adequate cost to the Defendants, more particularly, when the Plaintiff is a lady. 8. Accordingly, this Court while setting aside the impugned order under Annexure-4, allows the petition for amendment under Annexure-2 and directs the Plaintiff-Petitioner to file the consolidated plaint within a period of two weeks hence serving 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: 04-Jan-2024 17:50:07 // 4 // copy thereof on the Defendants along with a cost of Rs.7,500/- (Rupees seven thousand five hundred only). If the order is not complied with within the stipulated period, it will stand automatically vacated. 9. It is further made clear that learned trial Court shall not entertain similar nature of petition at the instance of the Plaintiff in future and shall also make an endeavour to dispose of the suit expeditiously without allowing unnecessary/long adjournment to any of the parties. 10. With the aforesaid observation and direction, the writ petition is disposed of. 11. Interim order dated 23rd August, 2011 passed in Misc. Case No.12827 of 2011 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4