The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 254 OF 2023 Sarojini Das and others Petitioners Mr. Shib Shankar Mohanty, Advocate …. -versus- Special Secretary-cum-Commissioner, General Administration Department, Odisha, Bhubaneswar and another …. Opp. Parties Mr. B. Panigrahi, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 20.03.2023 1. 1. 2. This matter is taken up through hybrid mode. Order dated 2nd March, 2023 (Annexure-6) passed by learned Senior Civil Judge, Bhubaneswar in C.S. No.1278 of 2010 is under challenge in this CMP, whereby rejecting an application filed by the Plaintiffs-Petitioners, cost of Rs.30,000/- has been directed to be paid by them to the fund of District Legal Services Authority, Khurda at Bhubaneswar. 3. Mr. Mohanty, learned counsel submits that the Petitioners assail the impugned order on two grounds, firstly with regard to the finding on the issue of due diligence and secondly, on the ground of imposition of cost. It is his submission that an application for amendment of the plaint was rejected vide order dated 10th January, 2023, which was challenged before this Court in CMP No.147 of 2023. The said CMP was disposed of vide order dated 22nd February, 2023 with a direction to the learned trial Court to consider the application Page 1 of 6 // 2 // under Order VI Rule 17 C.P.C. afresh. It is further submitted that in their pleading, the Plaintiffs have stated that their predecessor (original Plaintiff) has entered into possession of the suit land on the day of Akhaya Trutiya in the year, 1972. But, in order to claim adverse possession, they had to plead the specific date of entry. Hence, the Plaintiffs had thought of bringing such amendment before trial. But, unfortunately original Plaintiff fell ill and died on 25th February, commencement of the 2017 before commencement of the trial. However, before his death, the original Plaintiff had intimated the same to the substituted Plaintiff No.1, who noted it on a paper but she lost it somewhere. Suddenly, on 23rd December, 2022, the Plaintiff No.1 could trace out the said paper kept in an old book. Hence, an application under Order VI Rule 17 C.P.C. was filed after commencement of the trial. Learned trial Court failed to appreciate the same and by a lengthy order, held that the Plaintiffs had not exercised due diligence in filing the application for amendment. 3.1 He further submits that the cost of Rs.30,000/- has been imposed on the Plaintiffs for wasting the judicial time of the Court. It is his submission that no time whatsoever was wasted at the instance of the Plaintiffs-Petitioners to file the application for amendment. Initially, the petition for amendment was filed immediately after the paper containing the date of entry of the original Plaintiff into the suit land was found. After the said application was rejected on 10th January, 2023, the Plaintiffs- Petitioners moved this Court in CMP No. 147 of 2023, which Page 2 of 6 // 3 // was disposed of on 22nd February, 2023 directing learned trial Court to consider the application and dispose of the same on or before 3rd March, 2023. Thus, no time was wasted by the Plaintiffs-Petitioners to file an application under Order VI Rule 17 C.P.C. or to move the same. He relied upon the decision in the case of Satyapal Singh –v- Union of India and another, reported in (2010) 12 SCC 70, wherein it is held at paragraph-6 as under: “9. ......... Even if any costs are to be levied on a petitioner, for any default or delaying tactics, where the respondents have entered appearance, costs should be ordered to be paid to the respondents, who were the affected parties on account of the litigation. There is no justification for levying costs of Rs. 50,000 on the petitioner payable to the High Court Legal Services Committee. There is also no justification for directing the State Government to act as the collecting agent for the costs payable to the Legal Services Committee. Directing a government servant, an ordinary employee, to pay Rs. 50,000 as costs within one month and further directing the use of coercive process for recovery of costs as arrears of land revenue was unwarranted. 10. The levy of such exemplary costs in favour of the High is not a healthy Court Legal Services Committee, practice...........” He, therefore, submits that since the Defendants-Opposite Parties have already entered appearance, the Court could not have directed the Plaintiffs-Petitioners to pay cost of Rs.30,000,/- to the fund of District Legal Services Authority, Khurda at Bhubaneswar. He further submits that imposition of cost itself is illegal. Hence, he prays for setting aside the impugned order. 4. Mr. Panigrahi, learned Additional Standing Counsel, on the other hand, submits that no explanation whatsoever has been Page 3 of 6 // 4 // offered as to why the original Plaintiff could not incorporate the alleged date of his entry into the suit land in the pleadings when the same was known to him. Further, only a vague averment is made in the petition under Order VI Rule 17 C.P.C. stating that the substituted the Plaintiff No.1, who is the widow of the original Plaintiff, lost the paper in which she had noted the date. But, subsequently she could trace out the same from an old book used by her husband. No averment is made in the application for amendment about the date of intimation by the original Plaintiff to the substituted Plaintiff No.1 with regard to the date of entry of the original Plaintiff into the suit land. It is also not stated when she found out the same and from which book. In absence of those averments, it cannot be said that in spite of due diligence, the Plaintiffs-Petitioners could not have brought the amendment sought for in the plaint before commencement of the trial. He further submits that date of entry into the suit land over which the Plaintiffs-Petitioners claim adverse possession is of paramount consideration. Non-mention of such date is fatal to the suit of the Plaintiffs-Petitioners. Since trial of the suit has already commenced, an application for amendment at this stage if entertained, will certainly prejudice the Defendants-Opposite Parties. Further, it is submitted that since the Plaintiffs- Petitioners have tried to linger the proceeding without cooperating for disposal of the suit, learned trial Court has committed no error in imposing the cost. He, therefore, prays for dismissal of CMP. Page 4 of 6 // 5 // 5. Considering the rival contentions of the parties, this Court finds that the averments made in the petition under Order VI Rule 17 C.P.C. does not make out a case under the proviso to Order VI Rule 17 C.P.C. It is not stated as to when the original Plaintiff intimated the date of his entry into the suit land to his wife (substituted Plaintiff No.1) and from which book she could get the paper on which she allegedly noted the date. The said paper was also not brought to the notice of the Court. It is also not stated as to whether any endeavour was made by the Plaintiffs to search out the same. It is also apparent that the alleged date of entry to the suit land was known to the original Plaintiff and no explanation has been offered as to why the Plaintiff No.1 could not file an application to incorporate such amendment before commencement of the trial. On perusal of the impugned order, it also appears that learned trial Court has delved into the matter in detail about due diligence and applicability of the same to the case hand. As such, I am not inclined to interfere with the said findings with regard to rejection of the amendment petition. However, this Court finds that the cost imposed on the ground that the Plaintiffs have wasted the judicial time of the Court, does not appear to be proper, as they were pressing the petition under Order VI Rule 17 C.P.C. without wasting time. As such, this Court sets aside the said finding and directs learned trial Court to dispose of the suit expeditiously, if required by following the provisions under Order 17 Rule 1 C.P.C. Page 5 of 6 // 6 // 6. With the aforesaid observation and direction, the CMP is disposed of. 7. As requested, a copy of this order be handed over to Mr. Panigrahi, learned Additional Standing Counsel for communication and compliance. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Page 6 of 6