The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 220 of 2024 Monalisa Mishra and another .... Petitioners Mr.Suvendu Kar, Advocate -versus- Satyabrata Dash and another CORAM: …. Opp. Parties Mr. Janmejaya Katikia, Advocate (for Opposite Party No.1) JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 14.05.2024 3. 1. This matter is taken up through hybrid mode. 2. Order date 17th February, 2024 (Annexure-6) passed in CS No.298 of 2020 is under challenge in this CMP, whereby learned Additional Senior Civil Judge, Puri allowed an application for amendment of written statement filed by Defendant No.1. 3. Mr. Kar, learned counsel for the Petitioners submits that the suit has been filed to declare the sale deed dated 4th January, 2000 executed in favour Defendant No.1 by Defendant No.2 is fraudulent one and not binding on the Plaintiffs. A prayer is also made for permanent, prohibitory and mandatory injunction. During pendency of the suit, the Plaintiff No.1 died. Plaintiff Nos.2 and 3 filed a memo to delete the name of Plaintiff No.1, namely, Ashamani Mishra, wife of late Michhu Mishra, as her legal heirs were already on record. The said memo was allowed vide order dated 2nd December, 2021. Thereafter, the Defendant No.1 filed an application on the very same date, i.e., 2nd December, 2021 to conduct an enquiry and to find out whether Page 1 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 // 2 // Ashamani Mishra, who was contesting the suit as Plaintiff No.1, was the real one or not. Learned trial Court, vide its order 27th September, 2022, taking note of the contentions of the parties, recorded that the said issue shall be decided at the time of hearing of the suit. Thereafter, the Defendant No.1 filed an application for amendment of the written statement to incorporate the pleading that Plaintiff No.1, namely, Ashamani Mishra is a doubtful and disputed person. The status of said Ashamani Mishra as the wife of late Michhu Mishra is seriously disputed and the address given in the plaint is also doubtful. Although objection was raised by the Plaintiffs to the petition for amendment stating that the proposed amendment should not be allowed, as the Defendant No.1 by virtue of the amendment, seeks to withdraw the admission made at para-2 of the written statement, but learned trial Court ignoring the same, allowed the application holding that trial of the suit has not commenced and the merit of the proposed amendment cannot be gone into at the time of consideration of the application. 3.1 It is submitted by Mr. Kar, learned counsel for the Petitioners that learned trial Court although relied upon the ratio in the case of Life Insurance Corporation of India Vs. Sanjeev Builder Private Limited and another, reported in 2022 SCC OnLine SC 1128, but failed to take note of the observation made by Hon’ble Supreme Court to the effect that the amendment, which amounts to withdrawal of the admission made in the pleadings, should not be allowed. He, therefore, prays for setting aside the impugned order. Page 2 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 // 3 // 4. Mr. Katikia, learned counsel appearing for Defendant /Opposite Party No.1 submits that the consideration of amendment of plaint and written statement are different. Contradictory plea can be introduced in the written statement by way of amendment. When a memo was field by the Plaintiffs to delete the name of Ashamani Mishra, the Defendant No.1, on enquiry, came across certain documents of the Settlement Authority from which it was ascertained that much prior to filing of the suit, said Ashamni Mishra had died. Hence, the application for amendment was filed. It is also submitted that taking note of the petition filed by Defendant No.1 on 2nd December, 2021 with regard to identity of said Ashamani Mishra, learned trial Court, vide order dated 27th September, 2022, directed to consider the same at the time of hearing of the suit. Thus, in order to facilitate proper adjudication with regard to identity of Plaintiff No.1, namely, Ashamani Mishra, the proposed amendment is necessary to be incorporated in the written statement. By allowing the amendment, the contention raised by Defendant No.1 is not withdrawn. The burden is on the party to prove its case. The principle is also applicable to the Defendant No.1. The burden is on the Defendant No.1 to prove the pleadings he has introduced by way of amendment. Thus, the Plaintiffs are no way prejudiced, if the amendment is allowed. 5. Taking note of the submissions made by learned counsel for the parties, this Court finds that at para-2 of the written statement filed by Defendant No.1, it was categorically Page 3 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 // 4 // admitted that there is collusion between the Plaintiffs and Defendant No.2. The Defendant No.2 is an Advocate and legal practitioner in Puri Judgeship. “He is the only son and only male member of joint Hindu Mitakhyara family after death of husband of Plaintiff No.1(one), father of Defendant no.2 (two)”. Thus, it appears that Defendant No.1 in his written statement has impliedly admitted that Ashamani Mishra, Plaintiff No.1 is the wife of late Michhu Mishra, the father of Defendant No.2. By way of amendment, the Defendant No.1 raised a doubt with regard to identity of the deceased Plaintiff No.1. On perusal of the petition for amendment, it appears that after a memo was field by the Plaintiffs to delete the name of Plaintiff No.1 due to her death, enquiry was allegedly made by the Defendant No.1 and he purportedly came across certain documents of the Settlement Authority, where from it was ascertained that the death of Plaintiff No.1 was much prior to the filing of the suit. No details either of the alleged enquiry or the date of obtaining such information is provided in the petition for amendment. These aspects appear to have not been considered by learned trial Court while adjudicating the petition under Order VI Rule 17 CPC filed by the Defendant No.1. Further, while summing up the conclusion in the case of Life Insurance Corporation of India (supra) at para-70 (iii) (ii) held as under:- “70. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided Page 4 of 5 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: AR-cum-Senior Secretary Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 20-May-2024 12:56:54 // 5 // (a) the amendment does not result in injustice to the other side, (b) by the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and …….” (emphasis supplied) the amendment, 6. In view of the above, learned trial Court was required to consider as to whether by way of proposed amendment, the Defendant No.1 sought to withdraw the admission made at para-2 of his written statement or not. Accordingly, this Court is of the opinion that the matter requires fresh consideration. 7. Accordingly, the impugned order under Annexure-6 is set aside and the matter is remitted to learned trial Court for fresh adjudication of the petition under Order VI Rule 17 CPC providing opportunity of hearing to the parties concerned. While adjudicating the petition afresh, learned trial Court should keep in mind the discussions made herein above. 8. The CMP is disposed of accordingly. Issue urgent certified copy of the order on proper application. s.s.satapathy (K.R. Mohapatra) Judge Page 5 of 5