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THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No. 179 of 2023 (In the matter of an application under Articles 226 and 227 of the Constitution of India) Gandharb Moharana ----------- ……. -Versus- Petitioner Kailash Moharana and others ……. Opp. Parties For the Petitioner : M/s Laxman Mishra, S.M. Dhal and D. Swain, Advocates For the Opp. Parties : M/s Manoranjan Mishra, R.B. Sinha & S.R. Kara, Advocates (O.P.Nos.1 to 3) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA ---------------------------------------------------------------------------------------- Date of Hearing: 20.03.2025 :: Date of Judgment: 10.04.2025 S.S. Mishra, J. The petitioner has filed this petition challenging the order dated 03.01.2023, passed by the learned Civil Judge (Senior Division), Jajpur Road, which rejected the application under Order VI, Rule 17 of the CPC. The application sought to amend the plaint in C.S. No. 211 of 2020, filed on 07.12.2020, for partition of the scheduled property. 2.
Legal Reasoning
Heard Mr. Lakshman Mishra, learned counsel for the petitioner and Mr. Manoranjan Mishra, learned counsel for the opposite parties no.1 to 3. 3. The present petitioner filed a partition suit against as many as thirteen defendants. In the plaint, he has impleaded Kunti Moharana as defendant no.3 describing her as the wife of late Kalandi Moharana. He has also described that he and defendant nos.1 and 2 are the sons of Kalandi Moharana. In the genealogy given in paragraph-2 of the plaint also the petitioner described defendant no.3, Kunti Moharana, as the wife of Kalandi Moharana and described himself to be the son of Kalandi Moharana. Claiming to be one of the sons of Kalandi Moharana, he has sought for partition of the schedule property. 4. The defendant nos.1 to 3 filed written statement on 22.11.2021 challenging the very right of the petitioner. The defendants have inter alia contended as under:- “12(a) That, the plaintiff being not a co-percener or co-sharer either to defendant no.1 to 3 or to any other defendants is not eligible to claim for partition over the joint family properties belongs to defendant no.1 to 3 in respect of plaint „A‟, „B‟ and „C‟ schedule properties. The plaintiff is not the son of defendant no.3 (Kunti @ Buli Moharana). The defendant No.3 is the only legal married wife of late Kalandi Moharana and out of their wedlock they blessed only two sons namely- Kailash Moharana and Alekha Moharana i.e. defendant No.1 and 2 respectively. Gandharb being not the son of Kalandi Moharana and Kunti @ Buli Moharana (defendant No.3) she has no right to sue, so the present suit for partition at his instance is not maintainable.” Page 2 of 12 5. The suit was put to trial and when the evidence started to be recorded by the trial court, at that stage, the petitioner moved an application under Order-6, Rule-17 of CPC on 10.11.2022 seeking amendment to the plaint. The proposed amendment sought by the plaintiff reads as under:- “PROPOSED AMENDMENT” “1. That after name & age of D-3 'W/o' be deleted. In its place „kept of‟ be substituted. The age of Defendant No. 3 be corrected as '65'. 2. That in the genealogy the name 'Kunti D-3' be deleted. In its place 'Buli' be substituted. 3. That from the 2nd line of paragraph-4 '1to 3' be deleted. In its place '1 & 2' be substituted. 4. That from paragraph- 5 of the Plaint 1/12th, 1/8th & 1/4th be deleted. In its places 1/9th, 1/6th, & 1/3rd be substituted respectively. 5. That from Prayer Sub-paragraph (a) „1/12th, 1/8th & 1/4th be deleted. In its places 1/9th, 1/6th & 1/3rd be substituted respectively. 6. That in schedule of land „P.S. No.57‟ be added after P.S. – Korei in the 1st line of lot No.1 in schedule-„A‟ & schedule-C. Similarly after P.S.-Korei in the 1st line of lot No. 2, lot No. 3, lot No.4, lot No.5 in schedule „A‟ & B schedule „P.S. No.52‟ be added. Page 3 of 12 7. That after end of lot No.5 of schedule A land the following be added; Dist-Jajpur, P.S.- Korei, P.S. No.57, Mouza- Sisua, M.S. Khata No.15, M.S. Plot No. 55, A0.25 decimals‟ be added. 8. That after paragraph-4 of the plaint the following be added; 4(a). That the Defendant No. 3 Kunti is the legally married wife of Pravakar Sutar of Vill- Biramanpur under Jajpur Sadar P.S. District- Jajpur. She was renamed as Sabitri Sutar in her husband's house at Biramanpur. She is the daughter of Kartik Maharana of Vill- Panikoili. Now the successors of Kartik Maharana are residing at Alatiri (Chandpur Sahi). She has never got married to Kalandi Maharana at any poit of time. Bula @ Buli Maharana D/o- Bhikari Maharana of Vill- Barada under Korei P.S. was the legally married wife of Kalandi Maharana. The Plaintiff, Defendants No. 1 & 2 are born from the wed-luck of Kalandi Maharana with Bula Maharana. The Defendant No. 3 has never seen the birth of the Plaintiff, Defendants No. 1 & 2. She has no direct knowledge about the same. During the life time of Pravakar Sutar the husband, the Defendant No.3 left his house due to disturbances in their family and she had never been to the house of Pravakar Sutar. She was staying at Panikoili in the house of her parents. 4(b). That Kalandi Maharana was serving as a blacksmith in South-Eastern Railway. He had landed property in Vill- Khilipankha and its nearby villages. His wife Bula Maharana, his children and parents were leaving in Vill- Khilipankha to cultivate the landed property. His wife Bula Maharana was taking care of the children namely the Plaintiff, the Defendants No. 1 & 2 and parents of Kalandi Maharana in Vill- Khilipankha. Kalandi Maharana was staying in his service place and he had been to Vill- Khilipankha once in a month. Kalandi Maharana had been facing difficulties to cook for himself. So he wanted to keep a cook with him. It was impossible on his part to take Bula Maharana to his service place to cook for him and to render service to him. So he searched for an alternative. Page 4 of 12 4(c). That during lifetime of Pravakar Sutar and Bula Maharana the Defendant No. 3 went to reside with Kalandi Maharana to cook for him and to render service to him. By that time Defendant No. 2 was 5 years of old. Since then Defendant No. 3 had been residing with Kalandi Maharana. She is never the wife of Kalandi Maharana. She is never the mother of Plaintiff and Defendants Nos, 1 & 2. In the meantime Bula died. The Defendant No. 3 is falsely claiming herself as the wife of Kalandi Maharana only to get family pension. In the meantime Kalandi passed away during his service period. The Plaintiff is an illiterate and foolish person. Taking the advantage of his ignorance of the Plaintiff the Defendants No 1 to 3 join their hands together to deprive the Plaintiff from getting share in the property of Kalandi Maharana. The Defendant No. 1 got service in Railway under rehabilitation scheme, Defendant No. 3 is getting family pension falsely projecting herself as widow of Kalandi Maharana with the help of Defendants No. 1 & 2. In fact she is never a married wife of Kalandi Maharansa. She has got no direct knowledge about the family members of Kalandi Maharana. She is not competent to depose her evidence on the son-ship of the Plaintiff 4(d). That Kunti & Bali are neither same nor one person. They are two separate women. Kunti is never a legal heir of Kalandi Maharana. There was/is no person namely Kalandi Maharana in Vill-Sisua at any point of time. Person belonging to Maharana title are not living in Sisua except the Plaintiff. The Plaintiff is the eldest son of Kalandi Maharana of Vill- Khilipankha. He is now living in Mouza- Sisua in the dwelling house property of Kalandi Maharana of Vill- Khilipankha. The Plaintiff is never Gandharba Pradhan. He is Gandharba Maharana since his birth. He never belongs to Kendrapada District. He is never the son of Hari Pradhan. The Plaintiff is not a party to Registered Partition Deed No. 10822002400 dtd. 14.8.2020/27.8.2020 so the same is not binding on him. Such Deed never deprives the Plaintiff in getting his share from the suit property.” Page 5 of 12 6. By way of amendment, the plaintiff/petitioner seeks to change the entire narrative and attempted to suggest that defendant no.3, Kunti Moharana, is not the wife of Kalandi Moharana, rather she is the wife of one Pravakar Sutar of village Biramanpur in the district of Jajpur. The primary amendment the petitioner has sought in the application is regarding change of the status of defendant no.3 and the other amendments are consequence to the proposed changes in the plaint. The defendant nos.1 to 3 filed objection to the proposed amendment. The trial court taking into consideration the pleadings before the court below passed the impugned order dated 03.01.2023 rejecting the application primarily on two grounds. Firstly, the amendment sought to be brought into the plaint by the plaintiff as not bona fide, secondly by way of amendment the petitioner seeks to withdraw the categorical admission made by him in the plaint. The trial court in the impugned order has observed as under:- “In the present case, the plaintiff/petitioner describes Defendant No.3 Kunti Moharana as his mother and by way of the proposed amendment, the plaintiff wants to withdraw that admission by stating Defendant No.3 Kunti as the kept of his father Late Kalandi Moharana. The petitioner has completely failed to show that such an admission is an outcome of wrong or error or Page 6 of 12 inadvertent mistake. It is not supposed on the part of a person to wrongly identify somebody as his mother. Rather the documents like legal heir certificate, pension paper book of late Kalandi Moharana and orders passed in Misc. Appeal No.07 of 2021 filed by the opposite parties show that Kunti Moharana is the wife of Late Kalandi Moharana. So, it can be said that the proposed amendment is not a bona fide one and allowing such amendment will amounts to withdraw of a categorical admission made by the plaintiff earlier and will occasion irreparable injustice for amendment stands rejected.” the other side. Accordingly, the prayer to 7. I have carefully gone through the pleadings before the court below and the objection raised by the defendant nos.1 to 3/ respondent nos.1 to 3 in the present petition to the prayer made by the petitioner. The present petition is arising out of a partition suit. The petitioner is claiming himself to be a coparcener. In his plaint, he has categorically admitted that defendant no.3 (Kunti Moharana) is the wife of late Kalandi Moharana. He himself claims to be the son of Kalandi Moharana. On the basis of the said categorical admission in the plaint, he claims his coparcenary right. However, by way of an amendment he seeks to change the entire narrative and trying to describe defendant no.3-Kunti Moharana as the wife of one Pravakar Sutar but not Kalandi Moharana. It is surprising that the petitioner, claims to be the son of Kalandi Moharana, does not even know who is Kunti Moharana, rather Page 7 of 12 in order to sustain his claim trying to portray the relationship between him and other defendants in a doubtful manner. This is the reason the trial court has arrived at a conclusion that the attempt of the petitioner to seek amendment is not bona fide. 8. Reading of the plaint also makes it abundantly clear that relationship between the father of the plaintiff and defendant no.3 is categorically admitted in more than one place in the plaint to be the wife and husband. However, in the amendment he attempted to project defendant no.3 to be the wife of a third person. The said amendment is not only an endeavor to deviate from the categorical admission but also substantially change the entire case of the plaintiff in the partition suit. 9. It is well settled that a categorical admission made by the plaintiff cannot be allowed to be amended. In that regard, the judgment of the Hon’ble Supreme Court reported in (2015) 10 SCC 203, Ram Niranjan Kajaria vrs. Sheo Prakash Kajaria and others is relevant to be relied upon. Paragraphs-23 and 24 of the said judgment are worth reliance, which are reproduced hereunder: “23. We agree with in Nagindas Ramdas [(1974) 1 SCC 242] and as endorsed the position Page 8 of 12 in as held can be attacked in Gautam Sarup [Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85] that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be in Panchdeo Narain withdrawn, Srivastava [Panchdeo Narain Srivastava v. Jyoti Sahay, 1984 Supp SCC 594] , does not reflect the correct legal position and it is overruled. 24. However, the admission can be clarified or explained by way of amendment and the basis of substantive admission proceedings. In this context, we are also mindful of the averment in the application for amendment that: “11. … Mahabir Prasad Kajaria died at the age of 24 years on 7-5-1949 when Defendant 5 was only 2 years and Defendant 12 was only 21 years. Till the death of Mahabir and even thereafter, the petitioners had been getting benefits from income of the joint properties. Defendant 5 and his two sisters, namely, Kusum and Bina were brought up and were maintained from the income of the joint family properties. The petitioners after the death of Mahabir, they continued to live in the joint family as members and till now as members of the joint family. In the marriage of the two sisters of Defendant 5 Kusum and Bina (now after marriage Smt Kusum Tulsian and Smt Bina Tulsian) the expenses were wholly borne out from the incomes of the joint family properties. The said facts are well known to all the family members and their relations.”” 10. In regard to the scope of amendment in a suit has also been dealt with by the Hon’ble Supreme Court in a judgment reported in (2022) 16 SCC 1, Life Insurance Corporation of India vrs. Sanjeev Builders Page 9 of 12 Private Limited and another. Paragraph-71 of the said judgment lays down the parameters, which reads as under:- “71. Our final conclusions may be summed up thus: 71.1. Order 2 Rule 2 CPC 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 2 CPC 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 17 of the CPC. 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: Page 10 of 12 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, 71.4.2. The amendment changes the nature of the suit, 71.4.3. The prayer for amendment is malafide, 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 Page 11 of 12 plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. is the amendment 71.11. Where sought before 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, or divest the opposite party of an advantage which it had secured as a result of an the admission by 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.” seeking amendment, the party 11. Relying upon the aforesaid two judgments, without hesitation I may conclude that the order passed by the learned trial court rejecting the application under Order-VI, Rule-17 of CPC moved by the plaintiff is justified, as such no interference is called for. 12. Hence, the present petition fails and accordingly the same is dismissed. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack. Dated the 10th of April, 2025/ Ashok Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR JAGADEB MOHAPATRA Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 15-Apr-2025 12:04:14 Page 12 of 12