The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jul-2023 18:05:14 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1323 OF 2015 Janardan Khuntia and others Petitioners Mr. Bhaskar Chandra Panda, Advocate …. -versus- Biranchi Narayan Khuntia and others …. Opp. Parties Mr. J. Mohanty, Advocate (For Opp. Party Nos.1 and 2) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 17.07.2023 5. 1. This matter is taken up through hybrid mode. 2. At the outset, Mr. Mohanty, learned counsel for Opposite Party Nos.1 and 2 submits that in the meantime, Petitioner No.1 has died. 3. Mr. Panda, learned counsel for the Petitioners, however, submits that since the legal heirs are already on record, as Petitioner No. 2 and 3, no substitution of Petitioner No.1 is necessary. He, therefore, prays for deletion of deceased Petitioner No.1 from the cause title. A memo to that effect is filed, which is taken on record. 4. Considering the submissions made by learned counsel for the parties, the prayer for deletion of deceased Petitioner No.1 is allowed at the risk of the Petitioners. 5. Order dated 28th July, 2015 (Annexure-5) passed by learned Civil Judge (Junior Division), Puri in T.S. No.106 of 1992 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Opposite Party Nos. 1 and 2 for Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jul-2023 18:05:14 // 2 // amendment of the plaint under Order VI Rule 17 C.P.C., has been allowed. 6. Mr. Panda, learned counsel for the Petitioners submits that the suit has been filed by the Opposite Party Nos.1 and 2 for declaration of their right, title and interest including right of passage to the suit property and to confirm their possession thereof as well as for permanent injunction. Written statement was filed by the Petitioners in the year, 1997. When the matter stood thus and the suit was posted for hearing, the Plaintiffs- Opposite Party Nos.1 and 2 filed an application under Order VI Rule 17 C.P.C. to incorporate certain foundational pleadings to the effect that the decree passed in T.S. No.248 of 1990 passed by learned Civil Judge (Junior Division), Puri to be null and void and not binding on the Plaintiffs. It was further sought to be incorporated that deceased Defendant No.1, namely, Madhusudan Khuntia had acquired no right, title and interest over the suit property pursuant to the said decree. The Plaintiffs are also prayed for incorporation of prayer, which are as under: “a-1. Declare that the deceased defendant No-1(one) Madhusudan Khuntia had acquired no right, title and interest in and possession over the suit property. a-2. Declare that the ex-parte decree passed in T.S No-248 of 1990 of the Court of Sub-Judge, Puri is null and void and is neither binding on the present plaintiffs nor the defendant-deity of T.S No- 248 of 1990." 6.1 It is his submission that by allowing the prayer for amendment, learned trial Court virtually expanded the scope of the suit after a lapse of seventeen years of filing of the plaint. Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jul-2023 18:05:14 // 3 // Although written statement was filed in the year, 1997, the petition for amendment was filed on 30th January, 2015 (Annexure-3). It is also submitted that by virtue of amendment, the nature and character of the suit have changed. Learned trial Court erroneously holding that the nature and character of the suit would not change by virtue of the amendment and the amendment sought for will assist the Court for proper adjudication of the suit, allowed the same. Hence, this CMP has been filed. 7. Mr. Mohanty, learned counsel for the Plaintiffs- Opposite Party Nos.1 and 2 submits that since the suit is for declaration of right, title and interest, the nature and character will not change by virtue of the amendment. Further the amendment sought for is explanatory in nature and is required for just adjudication of the dispute between the parties. At the time of preparation of evidence in affidavit, it came to light that the deceased Defendant No.1 had suppressed the materials fact and had not come to the Court with unclean hands. As such, filing of petition for amendment was required. Since trial of the suit has not commenced as yet, there is no legal bar to allow such amendment. The Petitioners have an opportunity to file additional written statement to the amended plaint. As such, they are no way prejudiced. Hence, he prays for dismissal of the CMP. 8. Considering the submissions made by learned counsel for the parties and on perusal of the record, it appears that the written statement was filed by the deceased Defendant No.1 in the year, 1997, which has been adopted by the present Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jul-2023 18:05:14 // 4 // Petitioners. The petition for amendment was filed on 30th January, 2015. No explanation has been offered in the petition under Annexure-3 (under Order VI Rule 17 C.P.C.) as to why such an application was filed at a belated stage. 9. Further it appears that the Plaintiffs-Opposite Party Nos.1 and 2 seek to incorporate a prayer to declare the decree passed in T.S. No.248 of 1990 to be null and void and not binding on the Plaintiffs. The Defendants in the said suit are not made parties to the present suit. Further the amendment sought for will certainly prejudice the Defendants as the prayer made therein is barred by limitation. 10. In view of the case law in Life Insurance Corporation of India –v- Sanjeev Builders Private Limited and another, reported in 2022 SCC OnLine SC 1128, it has been held that the amendment sought for which is barred by limitation may be considered. But, it should not prejudice the adversary. In the instant case, the decree in T.S. No.248 of 1990 was passed in the year, 1991 and the amendment sought for to incorporate such prayer has been made in the year, 2015 without explaining the delay, which is certainly barred by limitation. It is also not the case of the Plaintiffs that the decree passed in T.S. No.248 of 1990 was not in their knowledge. Thus, the prayer incorporated in the plaint by way of amendment should not have been allowed. 11. Since the Opposite Party Nos.1 and 2 sought for declaration of their right, title and interest over the suit property, further declaration that the deceased Defendant No.1 had no right, title, interest and possession over the suit property Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 20-Jul-2023 18:05:14 // 5 // may not be necessary. In view of the fact that the prayer incorporated by way of amendment should not have been allowed, the foundational pleading to that effect is not required for just adjudication of the suit. This material aspect was not taken into consideration by learned trial Court while adjudicating the petition under Order VI Rule 17 C.P.C. (Annexure-3). 12. Accordingly, the impugned order under Annexure-5 is set aside. 13. Since the suit is of the year, 1992, learned trial Court shall make all endeavour to see that the same is disposed of at an early date. The parties to the suit are directed to cooperate with learned trial Court for early disposal of the suit. 14. With the aforesaid observation and direction, this CMP is disposed of. 15. Interim order dated 30th October, 2015 passed in Misc. Case No.1356 of 2015 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5