The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.220 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Venkateswar Educational and Multipurpose Services (VEMS), BBSR & Anr. …. Petitioners -versus- Surya Prakash Pati and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. H.Mohapatra, Advocate For Opposite Parties : Mr. S.Mishra, Advocate for O.P.1 & 2 Mr. S.Sahoo, Advocate for O.P.3 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 14th August 2025 B.P. Routray, J. 1. Heard Mr. H.Mohapatra, learned Advocate for the Petitioners, Mr. S.Mishra, learned counsel for Opposite Parties 1 & 2 and Mr. S.Sahoo, learned counsel for Opposite Party No.3. 2. Present C.M.P. is directed against order dated 17th January 2025 passed by learned Senior Civil Judge, Bhubaneswar in C.S. C.M.P. No.220 of 2025 Page 1 of 12
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 No.1278 of 2023, wherein the prayer for amendment of the plaint is refused. 3. Present Petitioners are the plaintiffs who filed the suit against present Opposite Parties as Defendants with the prayer as follows:- 18. Relief Sought for; (a) Let a decree be passed declaring the notice dated 09.02.2023, issued by the defendant No.1 in favour of the plaintiff for terminating the tenancy agreement dated 01.10.2020 as null and void and the same is not binding on the plaintiff. And the defendant No.1 & 2 be directed to perform the oral understanding made between their late father Chandra Sekhar Pati with the VEMS trust in respect of the suit property. (b) Let a Decree for permanent injunction be passed restraining the defendants permanently not to disposes the plaintiff from the suit premises and not to cause any sorts of disturbances in the suit premises and not to alienate the suit premises creating third party interest. (c) Let the cost of the suit be awarded in favour of the plaintiff. (d) Let any other decree be passed which is deem fit and proper taking consideration into the fact of the suit. 4. The Defendants appeared in the suit and Defendants No. 1 & 2 raised their counter claim for eviction of the plaintiffs along with other reliefs. After that, the Plaintiffs sought for incorporation of certain amendments in three parts as mentioned in the petition for C.M.P. No.220 of 2025 Page 2 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 amendment under Annexure-4. The first one is with regard to correction of certain typographical error with regard to the date of Sale Deed which was allowed by learned Trial Court. The second part of amendment is regarding replacement by incorporation of certain amounts relating to consideration purpose in respect of the alleged agreement, where third part of the amendment is with regard to insertion of the word “agreement” after the word “understanding” along with the prayer to execute the sale deed in respect of the suit property in favour of Plaintiff No.1 accepting the consideration amount of Rs.65,00,000/- (Rupees Sixty Five Lakhs only). 5. The Defendants objected said amendment proposed by the Plaintiffs on the ground that it would change the nature and character of the suit, which was initially a tenancy suit and now proposed to be a suit for specific performance. The learned Trial Court upon hearing both parties came to the finding that by seeking incorporation of the proposed amendment the nature and character of the suit would be changed from a tenancy suit to a suit for specific performance of contract and accordingly, refused the prayer for amendment sought for by the plaintiff in that regard. C.M.P. No.220 of 2025 Page 3 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 6. Challenging said order of the trial court as impugned in
Legal Reasoning
present CMP, it is submitted by Mr. Mohapatra, learned counsel for the Petitioners that the pleadings in the plaint though are with regard to performance of the contract between the Plaintiffs and Defendant No.3 initially, who was the owner of the suit property, but the word “understanding” was used for the purpose without mentioning the word “agreement” specifically. He emphasizes on the pleadings made at Para-4, 6 and 8 of the plaint to fortify his contention that the pleadings of the suit are in the nature of specific performance of contract. 7. Conversely, it is submitted by Mr. Mishra that the Plaintiffs have not stated a single cause of action with regard to specific performance of any contract alleged by them. Rather their entire endeavor by way of pleadings as well as the description of cause of action is with regard to setting aside the notice of eviction. It is further submitted by him that the Plaintiffs have come with proposed amendment only after the counter claim is raised along with the W.S. by Defendants No.1 & 2 regarding eviction of Plaintiffs from the suit land and other reliefs. C.M.P. No.220 of 2025 Page 4 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 8. Regarding amendments to pleadings, Hon’ble Supreme court in Life Insurance Corporation of India vs. Sanjeev Builders Pvt.Ltd & Anr., 2022 SCC Online SC 1128, have observed that:- 71. Our final conclusions may be summed up thus: 71.1. Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2CPC is, thus, misconceived and hence negatived. 71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order 6 Rule 17CPC. 71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. To avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and (c) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). 71.4. A prayer for amendment is generally required to be allowed unless: 71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be time-barred becomes a relevant factor for consideration. C.M.P. No.220 of 2025 Page 5 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence. 71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. 71.6. Where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. 71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time- barred cause of action, the amendment is liable to be allowed even after expiry of limitation. 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. 71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. is the sought 71.11. Where before amendment commencement of trial, the court is required to be 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, C.M.P. No.220 of 2025 Page 6 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 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 issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gaginder Kr. Gandhi.) 9. In the case at hand, the Plaintiff’s case is that, it is a school running over the suit property. When it was inducted into the suit property in the year 2007 there was an understanding with the initial owner (Defendant No.3) that the suit property would be subsequently purchased by the Plaintiffs after availability of funds in their hands and accordingly, the rent was paid at Rs.1,80,000/- per annum to be treated as part consideration money. Here it is important to reproduce Para-4, 6 and 8 of the plaint which are as follows:- 4. “That the financial condition of the Venkateswar school, which is run under the secretaryship of the plaintiff No.1 of VEMS Trust over the suit land good by that time. But the defendant No…. pressure upon the plaintiffs to pay.… the consideration money amounting Rs.45,00,000/- and get executed the sale deed in favour of the VEMS trust. Though by that time the plaintiffs were unable to pay the same, Chandra Sekhar Pati, the father of the defendant No.1 & 2 came forward with the proposal that he would pay the rest amount to the defendant No.3 and the sale deed would be executed by the defendant No.3 in his favour and when C.M.P. No.220 of 2025 Page 7 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 the VEMS trust will be able to pay back the said money to him, he will execute the sale deed in favour of the trust. Accordingly the defendant No.3 executed the sale deed in respect of the suit land in favour of the father of defendant Nos. 1 & 2 vide RSD No.1081509865 dt.19.07.2015 on payment of consideration amounting of Rs.75 lakhs on instalments, as the valuation of the suit lad has already enhanced by efflux of time and the school is running over the suit land under such understanding since then. The Trust has been paying the consideration to the father of the defendant No. 1 & 2 amounting of Rs.10,00,000/- but total money paid by him for execution of the sale deed in respect of suit land has not been paid completely. It was the understanding that till the full consideration is paid to Chandra Sekhar Pati, the School will pay Rs.1,80,000/- per annum. In the mean time Chandrasekhar Pati expired on dt.30.07.2022. xx…..xxx….xxx xx….xx…xxx 6. That, Chandra Sekhar Pati was a social worker having good name and fame. He was a student lover for which he had managed Venkateswar English Medium School at unit-4, Bhubaneswar. He had also supported many schools during his lifetime in many ways. He had also educated many needy students by spending money from his own pocket. Though the school of the plaintiffs was in fact in need of the land over which, it is existing and school had no funds and the plaintiff No.2 by that time was working in the Venkateswar English Medium School, Unit-4 in which Late Chandra Sekhar Pati was the Chairman, he extended his help to the school by making such understanding as mentioned above and the school is running smoothly as per such understanding. xx…..xxx….xxx xx….xx…xxx C.M.P. No.220 of 2025 Page 8 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 8. That after receiving the said notice, the plaintiff No.2 met to the defendant No.1 on dated 25.04.2023 and stated that for the benefit of the students and also for the school running in the suit premises, his father promised/ assured not to shift the school from the suit premises at any circumstances. The school will run in the said premises and whenever the Trust, the plaintiff No.1 under which the school is running is able to purchase the suit premises, by paying the balance consideration after payment made by the plaintiff No.2 to Late Chandra Sekhar Pati, the suit premises will be purchased by the plaintiff no.1. As the agreement basing on which the defendant no.1 issued notice is prepared for the purpose of submitting before the Block Education Officer, Khordha for getting recognition certificate and the same is a formal agreement having not been effected at all, issuance of notice by defendant no.1 on dated 09.02.2023 is null and nonest in the eye of law and the defendant no.1 has no locustandie to issue such notice”. 10. Here it would be not improper to reproduce the Para-10 also which speaks of cause of action stated by the Plaintiffs. Said Para-10 reads as follows:- 10. “That, the cause of action arises on 09/02/2023 when the defendant no.1 having no authority has issued notice to the plaintiff to hand over the vacant possession of the suit premises. Further cause of action arises when the plaintiff no.2 met the defendant no.1 on 25.04.2023 intimating him regarding the promise of his later father for continuance of the school in the suit premises on the basis of understanding with him and the defendant no.1 threatened her to throw out the school from the suit premises by utilizing hooligans and threatened to the plaintiff C.M.P. No.220 of 2025 Page 9 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 no.2 in dire consequence. Further cause of action also arises on 19.06.2023, when the defendant no.1 coming with some hooligans to the school premises, threatened to the plaintiff no.2 to vacate the school, otherwise she would face dire consequences”. 11. Having gone through all such pleadings as stated in the plaint, admittedly the word “agreement” was not used with regard to sale of suit property of Defendant Nos. 1 & 2. According to the Plaintiffs it was the understanding with Late Chandra Sekhar Pati, the father of Defendant Nos. 1 & 2 agreed to sale suit premises to the Plaintiffs. But no document in that respect has been relied by the Plaintiffs nor does he refer to any such written transaction in that respect. Rather a rent agreement was executed with Defendant No.1, Late Chandra Sekhar Pati on 1st October 2020 to be submitted before the authority for getting recognition of the school. This is a formal agreement according to the Plaintiffs required for getting recognition of the school. 12. It is further seen from Para-10 regarding cause of action that, every statement with regard to the same is relating to action of Defendant Nos. 1 & 2 to vacate the possession by the Plaintiffs. It is also stated that the Plaintiffs made Defendant No.1 to intimate them regarding the promise of Late Chandra Sekhar Pati for continuance C.M.P. No.220 of 2025 Page 10 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 of the school in the premises on the basis of the understanding arrived between them. The cause of action further states that the Defendants on different dates took actions against the Plaintiffs for their vacation of the suit premises and the threat given to them. 13. The suit is valued at Rs.65,000/- for the declaration sought for, and at Rs.100/- for permanent injunction and accordingly the court fees have been paid. 14. Thus, looking to the entire pleadings made in the plaint including the fact of existence of the house rent agreement, though the same is formal in nature according to the Plaintiffs, and the statements of cause of action read with the amount of valuation mentioned in the plaint, it is vividly clear that the prayer of the Plaintiffs was never in respect of specific performance of any contract. Rather the prayer of the Plaintiffs and the related pleadings with cause of action reveals the suit is in the nature of tenancy agreement questioning the eviction notice. Therefore, the amendments proposed by the Plaintiffs to be incorporated in the plaint to use the word “agreement” and to further execute the sale deed, would definitely affect the nature and character of the suit. C.M.P. No.220 of 2025 Page 11 of 12 Signature Not Verified Digitally Signed Signed by: SANGRAM DAS Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2025 16:12:07 Thus, in such circumstances, the proposed amendment cannot be permitted to be brought on record. 15. As such, no merit is seen to interfere with the impugned order and the CMP is dismissed. However, it is made clear that any such observations made in present order shall not affect the merits of the suit and it is open for the parties to lead their evidence according to their prayer and pleadings. (B.P. Routray) Judge S.Das/Sr.Steno C.M.P. No.220 of 2025 Page 12 of 12