Hemalata Jena @ Samal & Ors. v. Dasaratha Maharana & Ors.

ORDER 09.04.2024 This matter is taken up through hybrid mode. Order dated 22nd January, 2022 (Annexure-4) passed by learned Additional Senior Civil Judge, Jajpur in C.S. No.547 of 2015 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Petitioners under Order VI Rule 17 C.P.C. for amendment of the plaint has been rejected.

Mr. Mohanty, learned counsel submits that the suit has been filed by the Petitioners for declaration of right, title, interest and possession over C.S. Plot No.561. CS Plot No.561 belonged to Dinabandhu Nayak. In a family settlement, Dinabandhu Nayak and Krupasindhu Nayak exchanged their plots and accordingly, Dinabandhu held CS Plot No.561 and Krupasindhu held CS Plot No.560. Said Dinabandhu sold the property to the Plaintiffs’ vendor and in turn the Plaintiffs have purchased CS Plot No.561. Admittedly, there is no deed of exchange between Dinabandhu and Krupasindhu in respect of the aforesaid plots. The Defendants also do not dispute that CS Plot No.560 originally belonged to Dinabandhu, but the Plaintiffs could not // 2 // take a plea to incorporate an alternative prayer in the plaint to declare their right, title and interest over CS Plot No. 560 in the event it is found that Dinbandhu had no right, title and interest over CS Plot No.561. Hence, an application for amendment of the plaint was filed. But, learned trial Court refused to entertain the same on the ground that it was filed after commencement of the trial and it does not satisfy the requirement of proviso to Order VI Rule 17 C.P.C.

3.1 Mr. Mohanty, learned counsel further submits that even if the pleadings sought to be introduced are ignored, still alternative prayer sought to be introduced can be considered on the basis of the materials available on record. As such, allowing to incorporate an alternative prayer for declaration of right, title and interest of the Plaintiffs over CS Plot No.560 will not prejudice the Defendants in any manner. Rather it would assist the Court for proper adjudication of the suit. This aspect was not into consideration by learned trial Court while adjudicating the petition under Order VI Rule 17 C.P.C. He, therefore, prays for setting aside the impugned order and to allow the amendment sought for.

Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the petition for amendment was filed after commencement of the trial of the suit. On perusal of the petition filed under Order VI Rule 17 C.P.C. under Annexure-2, it appears that the Plaintiffs have not explained that in spite of due diligence, amendment sought for could not have been raised by the Plaintiffs before commencement of the trial. // 3 //

Proviso to Order VI Rule 17 C.P.C. is mandatory in nature. Unless the party seeking amendment establishes that in spite of due diligence, he could not have raised the matter before commencement of the trial, the Court entertaining an application under Order VI Rule 17 C.P.C. does not have any competence to entertain the same. In the instant case, no circumstance has been shown in the petition under Order VI Rule 17 C.P.C. to assume that the Plaintiffs could not have raised the matter before commencement of the trial in spite of exercising due diligence. As such, this Court finds that learned trial Court has committed no error in dismissing the application under Order VI Rule 17 C.P.C.

Hence, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 10-Apr-2024 21:17:52