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: 05-Feb-2024 18:05:16 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 14018 OF 2013 …. Pradyumna Kumar Satapathy @ Pradumnya Kumar Satpathy Petitioner Mr. Gautam Mishra, Senior Advocate being assisted by Mr. D.K. Patra, Advocate -versus- Ketaki @ Kataki Sahu and others …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 31.01.2024 4. 1. This matter is taken up through hybrid mode. 2. The Petitioner in this writ petition seeks to assail the order dated 25th March, 2013 (Annexure-4) passed by learned Civil Judge (Senior Division), Balangir in C.S. No.164 of 2004, whereby an application for amendment of the plaint filed by the Plaintiff-Opposite Party No.1, has been allowed subject to payment of cost of Rs.300/- to Defendant Nos.1 and 2. 3. Office note indicates that notice on Opposite Party No.2 returned unserved with a postal endorsement that “addressee expired. Hence, returned to sender”. It further indicates that A.D. on Opposite Party No.1 has not returned. 4. Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that the Petitioner does not claim any relief against Opposite Party No.2 in this writ petition. Hence, he prays for deletion of the name of Opposite Party No.2. He, however, submits that notice on Opposite Party No.1 has been sent by Registered Post with A.D. in the address disclosed by him in the plaint. Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Feb-2024 18:05:16 5. In view of such submission, this Court treats the notice // 2 // on Opposite Party No.1 to be sufficient in view of the provision under Order V Rule 9(5) CPC. 6. Mr. Mishra, learned Senior Advocate submits that Defendant No.1 in C.S. No.164 of 2004 is the Petitioner in this writ petition. He filed his written statement in the year, 2006. Nine years thereafter, the Plaintiff-Opposite Party No.1 filed the application for amendment under Annexure-3 proposing to incorporate the amendment as under: “Proposed amendment After paragraph-9 of the plaint a new paragraph be added as “Para-9-A”. it be pleaded in that paragraph, “That even if the Defendant No.1 and 9 claim that the R.O.R. prepared in the name of Niranjan Sahu in the current settlement and the settlement map prepared during the settlement operation are wrong but at no point of time they had taken any step for correction of the same, goes to show that, the same are correct, and now for the first time they are advancing such a false plea for the purpose of the case, which is not tenable in the eye of law.” 7. It is his submission that such an amendment is not permissible in eye of law as the Plaintiff wants to incorporate amendment answering the written statement, which is not permissible in law. He also relies upon the decision in the case of Chander Kanta Bansal –v- Rajinder Singh Anand, reported in 2008 (II) CLR (SC) 138. Relevant portion of which is reproduced hereunder: “11. Keeping the above broad principles in mind, let us ascertain whether the defendant has justifiable cause to file an application praying for amendment of a written statement for bringing an agreement dated 10.09.1982. We have already referred to the fact that the plaintiff had approached the court seeking a decree for mandatory injunction as early as on 1986. We also refer to the fact that within a short duration i.e. in 1986 itself, the defendant has filed a written statement. Absolutely, there is no whisper Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Feb-2024 18:05:16 // 3 // the that same and asserted about the prior partition agreement dated 10.09.1982. No doubt, in the application for amendment, it was stated that her son who is a Chartered Accountant all along was looking after this suit and he died in the year 1998. It is also available from the very same application that apart from her first son, namely, Sunit Gupta, defendant has another son by name Navneet Agarwal. Admittedly, the son who looking after the suit was none else than a Chartered Accountant. In such circumstances, if the alleged agreement dated 10.09.1982 between the plaintiff and defendant was in existence nothing prevented her son, Chartered Accountant, to bring it to the notice of her counsel and refer it in the written statement filed in the year 1986. It is relevant to mention that in the reply, the plaintiff has specifically the alleged denied agreement/partition deed dated 10.09.1982 is a forged document and based on the same, the proposed amendment cannot be allowed. It is also not in dispute and best known to both parties the suit which is of the year 1986 came to be taken up for trial only in 2004 and admittedly on the date of filing of the petition for amendment, the trial was on the verge of completion. It was brought to our notice that both sides have closed their evidence and completed their argument, but only at this stage the defendant filed the said application for amendment of her written statement. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at any stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence". means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Feb-2024 18:05:16 // 4 // file a petition after man would exercise in the conduct of his own affairs. It is clear that unless the party takes prompt steps, mere action the cannot be accepted and commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit Gupta, Chartered Accountant, had not taken any step about the so- called agreement. Even after his death in the year 1998, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness. 12. As rightly referred to by the High Court in Union of India vs. Pramod Gupta (dead) by LRs and Others, (2005) 12 SCC 1, this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings.” He, therefore, submits that the Plaintiff-Opposite Party No.1 was not at all diligent in seeking for amendment. Further delay in filing the petition for amendment of the plaint itself is a ground to reject the same. He, therefore, prays for setting aside the impugned order under Annexure-4. 8. It is his submission that although the interim order of stay of further proceeding of the suit was passed vide order dated 2nd July, 2013 in Misc. Case No.13113 of 2013, but applying principle of Asian Resurfacing of Road Agency Pvt. Ltd and another –v- Central Bureau of Investigation, reported in (2018) 16 SCC 299, learned trial Court proceeded with the suit by framing additional issues taking into consideration the amendment in the plaint. He, therefore, submits that subsequent proceeding pursuant to the impugned order under Annexure-4 is also bad in law. 9. Taking note of the submission made by Mr. Mishra, learned Senior Advocate, this Court is of the considered opinion Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 05-Feb-2024 18:05:16 that in view of the settled position of law, answering the // 5 // pleading in the written statement by way of amendment is not permissible. It has been held so by this Court in the case of Sanjeeb Mohanty –v- The Regional Director and another, reported in 2022 (1) ILR-CUT 395. In the instant case, the proposed amendment indicates that the Plaintiff wants to answer the pleadings by way of proposed amendment, which is beyond scope of Order VI Rule 17 CPC. Further there is an unexplained delay of nine years in filing the petition for amendment. Learned trial Court has brushed aside the aforesaid principle of law while allowing the petition for amendment. Hence, the impugned order under Annexure-4 is not sustainable and is set aside. 10. With the aforesaid observation and direction, the CMP is disposed of. 11. Since the suit is of the year, 2004, learned trial Court should make an endeavour to see that it is disposed of at an early date. 12. Interim order dated 2nd July, 2013 passed in Misc. Case No.13113 of 2013 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5