The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 307 OF 2024 Pradyumna Kumar Das and another …. Petitioners Miss Deepali Mahapatra, Advocate -versus- Jagannath Das and another …. Opp. Parties CORAM: JUSTICE K.R. MOHAPATRA Order No. 1. 1. 2.
Decision
ORDER 25.04.2024 This matter is taken up through hybrid mode. Order dated 22nd November, 2023 (Annexure-5) passed in C.S. No. 60 of 2008 is under challenge in this CMP, whereby learned Civil Judge (Senior Division), Anandapur rejected an application under Order VI Rule 17 C.P.C. filed by the Defendants-Petitioners for amendment of the counter claim. 3. It is submitted by Miss Mahapatra, learned counsel for the Petitioners that the Opposite Party No.1 as Plaintiff has filed C.S. No.60 of 2008 for declaration. The Defendants-Petitioners appeared and filed their written statement. Subsequently, they filed counterclaim. The suit was dismissed for default on 18th November, 2016. CMA No.32 of 2018 was filed under Order IX Rule 9 C.P.C. for restoration of the suit, which was also dismissed vide order dated 28th January, 2023. But, learned trial Court proceeded with the counterclaim. After dismissal of the CMA, the Plaintiff-Opposite Party No.1 along with his agents threatened the Defendants-counter claimants to take forcible possession of the suit land on 24th April 2023. Hence, an application for amendment of counterclaim was filed to introduce the aforesaid plea. It was also sought to be introduced Page 1 of 4 // 2 // that the Tahasildar, Anandapur issued mutation R.O.R. recording the name of father of the counter claimant-Defendant No.2 erroneously. A prayer was also sought to be introduced for permanent injunction. Learned trial Court although took note of the proposed amendment with regard to wrong mentioning of the name of father of Defendant No.2 did not take into consideration the pleadings with regard to threatening of the Plaintiff-Opposite Party No.1 in making an attempt to take forcible possession of the suit land and the prayer with regard to permanent injunction. Learned trial Court proceeded on a footing that since the evidence from the side of the parties has already been closed, no amendment could be allowed in view of the proviso to Order VI Rule 17 C.P.C. It is her submission that cause of action for filing of the petition for amendment more particularly with regard to the pleading of attempt of the Plaintiff to take forcible possession on 24th April, 2023, arose after closure of the evidence from the parties. Thus, there was no difficulty on the part of learned trial Court to allow such application. No prejudice will be caused to the Plaintiff-Opposite Party No.1, if the amendment is allowed. On the other hand, such a prayer can be incorporated in the counterclaim on payment of additional Court fee and the amendment if allowed would avoid multiplicity of litigation. These vital aspects were not taken into consideration by learned trial Court while adjudicating the petition for amendment. She also relied upon the decision in the case of Life Insurance Corporation of India –v- Sanjeeb Builders Private Limited and another, reported in 2022 SCC Online SC 1128 in which it is held that amendments sought for which are necessary for just adjudication of the suit, should be Page 2 of 4 // 3 // allowed and the petition for amendment can also be considered to avoid multiplicity of litigation. If the prayer for amendment is not allowed, the Defendants-Petitioners would be required to file a separate suit for injunction, which will certainly multiply the litigation. Hence, amendment sought for should have been allowed. She, therefore, prays for setting aside the impugned order under Annexure-5 and to allow the amendment sought to be introduced in the counterclaim. 4, Taking note of the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that so far as wrong entry of the name of the father of Defendant No.2 in the mutation R.O.R. is concerned, it could have been raised before commencement of the trial. So far as pleading with regard to attempt of the Plaintiff-Opposite Party to take forcible possession of the suit land from the Defendants-Petitioners on 24th April, 2023 is concerned, this Court is of the view that a bald plea is taken that an attempt was made by the Plaintiff- Opposite Party No.1 to take over possession of the suit land on 24th April, 2023. No alleged overt act of the Plaintiff has been stated. In the amendment petition, the date and month of alleged threat appear to have been written in ink, whereas the petition is a printed document. Thus, it appears that the date has been put only to create a cause of action and to avoid the rigorous of law, i.e. proviso to Order VI Rule 17 C.P.C. 5. Admittedly, the counterclaim is at the stage of argument. At this belated stage, such an amendment is sought for to the counter claim. In the case of Ashok Kumar Kalra –v- Wing Cdr Surendra Agnihotri and others, reported in (2020) 2 SCC 394, the Hon’ble Supreme Court has laid down that filing of Page 3 of 4 // 4 // counterclaim after the commencement of recording of evidence would be improper, as the Court’s discretion has to be exercised wisely and pragmatically. Thus, when filing of a counterclaim after commencement of trial is deprecated, entertaining a petition for its amendment will be illegal. 6. Thus, this Court is of the considered opinion that since the Petitioner has a scope to file an independent suit for permanent injunction, amendment to the counterclaim at the belated stage of the suit, i.e. at the stage of argument, should not be allowed and learned trial Court rightly done so. Accordingly, this Court is not inclined to interfere with the impugned order. 7. Hence, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Apr-2024 17:35:43 Page 4 of 4