The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 78 OF 2024 Sayanha Swati Petitioner Mr. Manmaya Kumar Dash, Advocate …. -versus- State of Odisha and others Opp. Parties …. Mr. D.K. Mohanty, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 07.02.2024 1. 1. This matter is taken up through hybrid mode. 2. Order dated 7th December, 2023 (Annexure-6) passed by learned Civil Judge (Senior Division), Bhubaneswar in T.S. No.173 of 2000 is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner under Order VI Rule 17 C.P.C. for amendment of the plaint has been rejected. 3. Mr. Dash, learned counsel for the Petitioner submits that the Plaintiff is the Petitioner in this CMP. The suit has been filed for declaration of right, title and interest over the suit property along with other relief. Admittedly, the suit property is recorded in the name of Government of Odisha. The father of the Plaintiff was running a garage over the suit property. The Plaintiff being his daughter has filed the suit. Initially, the Plaintiff had taken a plea that by way of an oral gift, her father had gifted the suit property on the date of her marriage, i.e. on 20th January, 1985 and since then, she is in possession over the same by raising construction thereon. The suit was dismissed Page 1 of 4 // 2 // for default on 4th March, 2010. Subsequently, CMA No.5 of 2010 was filed, which was disposed of on 23rd November, 2023 by restoring the suit and posting the matter to 4th December, 2023 for adducing evidence on behalf of the Plaintiff-Petitioner. At that juncture, the Plaintiff by filing an application to advance the date of posting of the suit filed an application under Order VI Rule 17 C.P.C. on 2nd December, 2023. Learned trial Court most erroneously holding that the Plaintiff by way of amendment wants to introduce a claim of adverse possession, rejected the same. It is his submission that initially, the Plaintiff had pleaded that the suit property was gifted by her father, but the petition for amendment was filed proposing to incorporate that father of the Plaintiff was running a garage and the Plaintiff continued to assist him and subsequently finding it to be lucrative continued with the garage by possessing the suit property in her individual capacity. Pleading sought to be incorporated does not take away the effect of the pleadings made earlier and basis of the claim does not change. The nature and character of the suit also remains the same. Hence, learned trial Court should have allowed the amendment liberally as held in the case of Life Insurance Corporation of India –v- Sanjeev Builders Private Limited and another, reported in 2022 SCC Online SC 1128 in which the Hon’ble Supreme Court at paragraph-70(xi) held as under: “70. Our final conclusions may be summed up thus: xxx xxx xxx (xi) Where is sought before commencement of trial, the court is required to be the amendment Page 2 of 4 // 3 // liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main the parties, the issues (See Vijay be amendment Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897)”. in controversy between allowed. should In the instant case, amendment was sought for before commencement of the trial. Hence, it should have been allowed liberally. He, therefore, prays for setting aside the impugned order and to allow the proposed amendment. 4. Mr. Mohanty, learned Additional Standing Counsel appearing for the State vehemently objects to the same and submits that if the amendment is allowed, the basis of claim of the Petitioner will change completely. Initially the Plaintiff sought for the relief on the basis of an oral gift, but, by way of amendment, she claims right over the suit property in her individual capacity from the date of her possession. Thus, the amendment has rightly been rejected by learned trial Court. 5. Considering the submissions made by learned counsel for the parties, this Court finds that the suit is of the year, 2000. On 4th March, 2010, the suit was dismissed for default. An application in CMA No. 5 of 2010 under Order IX Rule 9 C.P.C. was filed, which was allowed vide order dated 23rd November, 2023 with a direction that the Plaintiff without Page 3 of 4 // 4 // taking any adjournment should come ready for adducing evidence on 4th December, 2023. Just before two days of the date of hearing of the suit, the Plaintiff filed an application for amendment. 6. On perusal of the petition for amendment, it appears that in paragraph-13 of the plaint, the Plaintiff claimed possession over the suit property by way of an oral gift. But, by way of amendment, she wants to delete the same and introduce a pleading that the Plaintiff continued to assist her father in his business and in such manner possessed the suit property. If the amendment is allowed, the entire basis of the claim will change. Thus, learned trial Court has committed no error in rejecting the petition for amendment. 7. Mr. Dash, learned counsel, however, submits that he does not want to press the amendment proposed to be made to paragraph-13 of the plaint. Even if the said amendment is ignored, the subsequent amendment also indicates that the Petitioner wants to claim right over the suit property through possession and not by an oral gift, which is the claim of the Plaintiff in the plaint. 8. In view of the above, ignoring the proposed amendment to paragraph-13 will not change the fate of the Plaintiff i.e. with regard to the manner of possessing the suit property. Thus, I find no infirmity in the impugned order. 9. Accordingly, the CMP being devoid of any merit stands Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Feb-2024 20:16:36 bks dismissed. (K.R. Mohapatra) Judge Page 4 of 4