The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR C.M.P No.165 of 2025 Shasanka @ Sasanka Prasad Panda …. Petitioner Mr. T.K. Mishra, Advocate -Versus- Kuntala Sahoo …. Opposite Party Mr. H. S. Mohanty, Advocate CORAM: JUSTICE R.K. PATTANAIK DATE OF JUDGMENT:10.06.2025 1. Instant petition is filed by the petitioner assailing the correctness of the decision by order dated 24th December, 2024 as at Annexure-13 passed in connection with C.S. No.3275 of 2014 by learned 3rd Additional Civil Judge (Senior Division), Cuttack, whereby, an application under Order 6 Rule 17 C.P.C. seeking amendment of the plaint as per Annexure-8 pressed into service by him has been declined on the grounds inter alia that the same is not tenable in law and hence, required to be interfered with in the interest of justice. 2. The opposite party instituted the suit against the petitioner for realization of a sum of Rs.1,17,700/- C.M.P No.165 of 2025 Page 1 of 14 along with interest @ 12% per annum till such recovery and a decree of damage for Rs.50.000/- along with pendent lite and future interests over the entire amount with cost. A copy of the plaint is at Annexure- 1, according to which, the opposite party pleaded that she is a super stockiest, whereas, the petitioner to be a distributor and was liable to pay the outstanding dues in respect of the purchased items received between 10th April, 2010 and 4th December, 2010 and in that connection, had issued a cheque dated 17th May, 2011 to clear the same but it bounced back and for the same, a complaint in 1.C.C. No.636 of 2011 was filed under Section 138 of the N.I. Act but was dismissed on 17th June, 2013, against which, CRLLP No. 124 of 2013 was filed and is pending disposal before this Court. It is further pleaded that the opposite party filed an application under Order 6 Rule 17 CPC in the suit, to which, an objection was received and the same was followed by an order dated 2nd April, 2019 at Annexure-4 thereby denying such amendment as was pleaded. Upon rejection of the amendment of the plaint, it is pleaded that the request to once again amend the same was received as per Annexure-8 with a plea that the same is necessary and is unlikely to change the nature and the character of the suit but C.M.P No.165 of 2025 Page 2 of 14 before that, another application under Order 6 Rule 16 CPC was moved to strike out a particular word from para-3 and 6 of the plaint, however, it stood denied by order dated 16th May, 2019 as at Annexure-7. According to the petitioner, since such an application under Order 6 Rule 17 CPC was filed as per Annexure- 8, the same was also received with an objection from the side of the petitioner. A copy of the said objection is at Annexure-9. The petitioner pleaded that the earlier amendment for the self-same relief was denied vide Annexure-4 and the application under Order 6 Rule 17 CPC was rejected too on 16th May, 2019 (Annexure-7), so the amendment of the plaint once more with a similar relief could not have been entertained as it was filed to get over the limitation but was followed by an order dated 2nd August, 2022 at Annexure-10 and the
Legal Reasoning
same was challenged in CMP No.926 of 2022 disposed of on 8th December, 2022 to freshly consider such an application under Order 6 Rule 17 CPC. A copy of the said order is at Annexure-11. The petitioner pleaded that an application under Order 11 Rules 1 & 4 CPC at the instance of the opposite party was received by learned Court below to grant him the leave to deliver
Decision
interrogatories to the petitioner for a reply and it was disposed of on 19th November, 2019 and the same was C.M.P No.165 of 2025 Page 3 of 14 also rejected and during the interregnum, the amendment of the plaint was moved but at last, it was followed by Annexure-11 for a direction to reconsider and ultimately, it has led to passing of the impugned order i.e. Annexure-13, whereby, the amendment was allowed vide Annexure-13. The contention of the petitioner is that learned Court below ought not to have allowed such an amendment of the plaint when all the earlier efforts proved futile, inasmuch as, when the amendment under Order 6 Rule 17 CPC was declined not once but twice including rejection of an application under Order 11 Rules 1 & 4 C.P.C. The further contention is that the proposed amendment was moved by the opposite party initially and thereafter, to patch up the lacuna, since such suit is barred by limitation and in any case, the plea for such amendment is hit by res judicata. 3. Heard Mr. Mishra, learned counsel for the petitioner and Mr. Mohanty, learned counsel for the opposite party. 4. Mr. Mishra, learned counsel for the petitioner reiterates the facts pleaded on record to submit that similar application under Order 6 Rule 17 CPC was moved in the year, 2019 and the same was rejected on C.M.P No.165 of 2025 Page 4 of 14 2nd April, 2019 and it was followed by a request to strike off a particular word from the plaint in terms of under Order 6 Rule 16 CPC and the same was denied on 16th May, 2019 including a request to deliver interrogatories as per under Order 11 Rules 1 & 4 CPC and notwithstanding above, ignoring the objection of the petitioner as per Annexure-9, the proposed amendment of the plaint was allowed vide Annexure- 13 and it was to overcome the hurdle of limitation for the fact that the plaint is hit by Order 7 Rule 11(d) CPC but unfortunately, learned Court below leaving aside everything permitted the same, which was once rejected and the same was never challenged thereafter by the opposite party, hence, the impugned decision dated 24th December, 2024 in the suit is bad in law and therefore, calls for interference. 5. Mr. Mohanty, learned counsel for the opposite party, on the other hand, submits that there is no illegality committed by learned Court below having allowed the amendment of the plaint in terms of Order 6 Rule 17 CPC, as the same is not to alter the nature of the suit. The further submission is that any such amendment to incorporate specific words is not to subject the petitioner to any prejudice as in any case the opposite party is required to prove such facts C.M.P No.165 of 2025 Page 5 of 14 pleaded with an equal opportunity for the other side to rebut the same. 6. In course of hearing, Mr. Mishra, learned counsel for the petitioner refers to a decision of the Apex Court in Revajeetu Builders and Developers Vrs. Narayanaswamy & Sons and others (2009) 10 SCC 84 to contend that costs should be imposed on the opposite party for filing similar applications seeking amendment, etc. designed to delay the disposal of the suit taking into account the principles enumerated therein. As earlier stated, after the amendment of the plaint was allowed in favour of the opposite party, the petitioner challenged the same in CMP No.926 of 2022 and it was followed by Annexure-11 for a fresh consideration by learned Court below taking into account the rival contentions of the parties and providing opportunity of hearing to both the sides. On a reading of the impugned order dated 24th December, 2024 at Annexure-13, it is made to understand that the learned Court below without taking into account the objection of the petitioner with a plea that a similar application under Order 6 Rule 17 C.P.C. seeking the same relief was rejected followed by dismissal of applications under Order 6 Rule 16 CPC and Order 11 Rules 1 & 4 C.P.C. proceeded to allow the amendment C.M.P No.165 of 2025 Page 6 of 14 of the plaint. Indeed, no discussions have been made by learned Court below on the specific objection of the petitioner pursuant to the remand order dated 8th December, 2022 in CMP No.926 of 2022. Rather, the learned Court below has allowed the amendment on the premise that the opposite party is the master of the suit and can amend the plaint if situation demands. A formal order of the request for amendment of the plaint has been passed by learned Court below as it appears without considering the earlier rejection on similar ground and for a same relief. It is not in denial that the application under Order 6 Rule 17 CPC as per Annexure-3 series received serious objection from the side of the petitioner and it was followed by an order dated 2nd April, 2019 denying the same with a direction for him to lead evidence on the date fixed i.e. 9th April, 2019. Truly speaking, the contents of Annexure-3 series with the proposed amendment are no different from Annexure-8. The specific words in para-3 and 4 of the plaint with regard to the last two cheques issued by the petitioner have been sought to be amended on the ground that the same is essential for a just decision in the suit. As earlier stated, the said amendment was declined by order dated 2nd April, 2019 at Annexure-4. Nothing has been brought to the notice of the Court by C.M.P No.165 of 2025 Page 7 of 14 Mr. Mohanty, learned counsel for the opposite party, whether the order i.e. Annexure-4 was ever challenged. Instead, Mr. Mishra, learned counsel for the petitioner submits that denying the proposed amendment under Order 6 Rule 17 C.P.C. vide Annexure-4, the issue has attained finality. It is not in dispute that the opposite party, after the earlier amendment was refused, had moved applications under Order 6 Rule 16 C.P.C. dismissed on merit by order dated 16th May, 2019 and one under Order 11 Rules 1 & 4 was rejected. The plea of the petitioner is that in case, the proposed amendment is allowed, it would bring the suit within limitation when the consistent plea is that the same is barred by time and hence, hit under Order 7 Rule 11(d) CPC. When the earlier amendment was disallowed by order dated 2nd April, 2019 and on a comparison of the contents therein alongside Annexure-8, the question is, whether, learned Court below was right in accepting the amendment of the plaint of similar nature. 7. A plea of res judicata has been advanced by Mishra, learned counsel for the petitioner on the ground that earlier amendment was declined, it was, hence, not to be entertained at a later stage of the suit, all the more when, the opposite party did not challenge the rejection order dated 2nd April, 2019 (Annexure-4). On the C.M.P No.165 of 2025 Page 8 of 14 contrary, Mr. Mohanty, learned counsel for the opposite party would submit that the proposed amendment having been rightly allowed, the same should not be disturbed for the fact that it is necessary for proper and effective adjudication of the lis between the parties. The principle of res judicata applies as between two stages in the same litigation so that if an issue has been decided at an earlier stage against a party, it cannot be allowed to be re-agitated by him at a subsequent stage in the same suit or proceeding and such is the settled position of law and in that connection, a reference to a decision of the Apex Court in C.V. Rajendran and another Vrs. N.M. Muhammed Kunhi (2002) 7 SCC 447 may be referred to. In order to decide, whether, the principle of res judicata is applicable in the case at different stages of proceeding, it is necessary to examine inter alia the nature of the proceedings, scope of inquiry which the objective law proceeds for the decision being reached as well as the specific provisions made touching such decision. The above principle is based on the need of achieving finality with respect to judicial decisions. The underlying doctrine with regard to Section 11 CPC is that none should be vexed twice on the same subject matter. Such is the view of the Apex Court in C.M.P No.165 of 2025 Page 9 of 14 Bhabanarayanas Wamivari Temple Vrs. Vedapali (1971) 1 SCJ 215. In fact, Section 11 CPC embodies the rule of conclusiveness as evidence or bars as a plea of an issue in an earlier suit founded on a point in which the matter is directly and substantially in issue and became final. As earlier stated, res judicata is to apply in the same proceeding at a subsequent stage of the suit. In case, any application is moved with a similar relief but the same is based on new facts, any such earlier order is not to stand as a bar. In Mahavelikara Ex-servicemen’s Co-operative Society Vrs. Rajamma 1986 KLT 513, it has been concluded that the doctrine of res judicata is based on the norm of the public policy on the one hand and a rule of private justice on the other side; the public policy is the general interest of the community in the determination of dispute and in the finality and conclusiveness of judicial decisions; the private justice is based on the right of an individual to be ensconced from vexatious suits being filed at the instance of the adversary, whose superior opulence, resources and power, unless clipped by estoppel gravitate and weigh down judicially declared rights. In Delhi Transport Corporation Vrs. D.T.C. Mazdoor Congress AIR 1991 SC 101, the Apex Court held and observed that C.M.P No.165 of 2025 Page 10 of 14 Article 14 read with Article 16(1) of the Constitution of India contemplates right to equality or an equal treatment consistent with the principles of natural justice and any law made or action taken by the employer, corporate, statutory or instrumentality under Article 12 must act fairly, justly and reasonably as right to fair treatment is an essential inbuilt of natural justice and while dealing with the principle of res judicata vis- à-vis equality and non-arbitrariness, it was lastly concluded that exercise of unbridled and uncanalised discretionary power impinges upon the right of a citizen; vesting of discretion is no wrong provided it is exercised purposively, judiciously and without prejudice; wider the discretion, the grater the chances of abuse; absolute discretion is destructive of freedom than of man’s other inventions; absolute discretion rather marks the beginning of the end of the liberty. To add to the above, the Apex Court in Supreme Court Employees Welfare Association Vrs. Union of India and others AIR 1990 SC 334, it has been held that the doctrine of res judicata is about laying down the finality of litigation between the parties and when a particular decision has become final and binding between the parties, it cannot be set at naught even on C.M.P No.165 of 2025 Page 11 of 14 the ground that such a decision is violative of Article 14 of the Constitution of India. 8. In view of the above settled legal position discussed in brief, the Court has to determine, whether, learned Court below was justified to formally allow the amendment of the plaint when its earlier decision dated 2nd April, 2019 at Annexure-4 is staring at the opposite party, since not challenged thereafter. It is not understood what prevailed upon the opposite party to remain silent without challenging the rejection order i.e. Annexure-4. Quite interestingly, two more applications followed suit and it was as per under Order 6 Rule 16 CPC and Order 11 Rules 1 & 4 C.P.C. and both have been dismissed as well. The relief sought for by the opposite party in all such applications moved earlier to Annexure-8 apparently relate to and for similar relief. In fact, an attempt was made by the opposite party seeking leave to deliver interrogatories in terms of Order 11 Rules 1 & 4 C.P.C. but the same was also declined. The Court is not aware of whether the orders of learned Court below while dealing with applications under Order 6 Rule 16 C.P.C. and Order 11 Rules 1 & 4 C.P.C. have been challenged by the opposite party. Nevertheless, the Court finds that the entire effort on the part of the opposite party has been C.M.P No.165 of 2025 Page 12 of 14 to incorporate the proposed amendment directly or indirectly with the elicitation through the interrogatories but has been denied all along. As far as the amendment as per Annexure-3 series is concerned, it was dismissed but with a similar relief, Annexure-8 was moved and the opposite party became successful in the second attempt with the impugned order at Annexure-13 in his favour upon its disposal and it was consequent upon the order of this Court in CMP No.926 of 2022. The Court is of the humble view that once amendment was declined earlier, it stands as a stumbling block for the opposite party since rule of res judicata is to apply and in view of the settled law discussed hereinbefore, such rule is applicable at different stages of a suit or proceeding. If the proposed amendment as per Annexure-3 was dismissed on merit and there are no fresh facts to be the basis for the application at Annexure-8, the subsequent demand for amendment of plaint is certainly hit by res judicata. It is to reiterate that the other two applications at the behest of the opposite party proved to be unsuccessful and under such circumstances, learned Court below, in the considered view of the Court, could not have allowed a similar amendment to the pleading. Any such decision is like review of the earlier order on C.M.P No.165 of 2025 Page 13 of 14 amendment disallowed against the opposite party, who having not challenged the same either. With such a conclusion reached at keeping in view the settled legal position, the impugned order as per Annexure-13 cannot be sustained in law, hence, it calls for interference. 9. Accordingly, it is ordered. 10. In the result, the petition stands allowed. As a necessary corollary, order dated 24th December, 2024 as at Annexure-13 passed in connection with C.S. No.3275 of 2014 is hereby set aside with a direction to learned 3rd Additional Civil Judge (Senior Division), Cuttack to proceed to deal with the suit for its expeditious disposal as per and in accordance with law. In the circumstances, however, there is no as to costs. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CUTTACK Date: 10-Jun-2025 16:20:56 C.M.P No.165 of 2025 Page 14 of 14