The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 436 OF 2019 Prabir Bhuyan and others Petitioners Mr. Dwarika Prasad Mohanty, Advocate …. -versus- Sachindra @ Chhachindra Nath Das and others …. Opp. Parties Mr. Maheswar Mohanty, Advocate (For Opposite Party Nos.1 to 5, 7, 8, 11 to 13) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 21.04.2023 6. 1. This matter is taken up through Hybrid mode. 2. Order dated 16th January, 2019 (Annexure-5 passed by learned Civil Judge (Junior Division), Jaleswar) in CS No. 188 of 2007 is under challenge in this CMP, whereby learned trial
Legal Reasoning
Court dismissed an application filed by the Plaintiffs/Petitioners under Order VI Rule 17 CPC.
Legal Reasoning
3. Mr. Mohanty, learned counsel for the Petitioners submits that in ‘Kha’ schedule of the land, the Khata number of the Plots could not be stated, as it was not available to the Plaintiffs at time of filing of the suit. Subsequently, they could obtain the certified copy of the revision ROR and filed an application for amendment of the plaint. The amendment sought for is only to introduce the revision Khata number of the plots mentioned in ‘Kha’ schedule of the land. In ‘Ka’ schedule, the Petitioners sought to add ‘alias Narasingha’ to the name of common ancestor, namely, ‘Baraju’. Although the certified copy of the revision RORs were applied for much prior to Page 1 of 6 // 2 // commencement of hearing, but those were made available after commencement of hearing. Although there is delay in filing the amendment application, but it would not cause prejudice to the Defendants, as it is mere explanatory in nature. Further, prejudice, if any, to the Defendants can be compensated on payment of cost. Learned trial Court, rejected the petition only on the ground that there is inordinate delay in filing the petition for amendment and the trial of the suit had already commenced when the petition for amendment was filed. As the certified copies of the revision RORs were made available to the Petitioners after commencement of the trial it could not have
Decision
been filed earlier. Hence, the impugned order is not sustainable in the eye of law. 4. Mr. Mohanty, learned counsel for the Petitioners also relied upon the case law in the case of M/s. Revajeetu Builders v. M/s. Narayanaswamy & Sons & Ors (2009) 10 SCC 84, wherein it is held as under:- “FACTORS TO BE TAKEN INTO CONSIDERATION WHILE DEALING WITH APPLICATIONS FOR AMENDMENTS: 67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment. (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona (3) (4) fide or mala fide? The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; Refusing amendment would lead to injustice or lead to multiple litigation; in fact (5) Whether the amendment constitutionally or fundamentally changes the nature and character of the case? and proposed Page 2 of 6 // 3 // (6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.” He further submits that when the amendment is imperative for complete and effective adjudication of the suit, delay in filing the petition should not stand on the way to entertain the same. Hence, he prays for setting aside the impugned order and to allow the amendment. 5. Mr. Mohanty, learned counsel for the contesting Opposite Parties submits that admittedly the application for condonation of delay was filed after commencement of trial of the suit. Further, Plaintiffs/Petitioners had made two other applications for amendment prior to the present one, which were allowed before commencement of the trial. There is no material available on record to show that in spite of due diligence the Petitioners could not have obtained certified copy of revision RORs before commencement of the trial. Hence, learned trial Court has committed no error in dismissing the application under Order VI Rule 17 CPC. 6. Considering the submissions made by learned counsel for the parties and on perusal of the proposed amendment, it appears that those are clarificatory and explanatory in nature. In ‘Ka’ schedule of the plaint, the Petitioners wanted to add ‘alias Narasingha’ after ‘Baraju’, the common ancestor to clarify his identity. Further, in ‘Kha’ schedule, the Petitioners in order to give better description of the property, sought to introduce the revision Khata numbers. Of course, there is no explanation in the petition under Order VI Rule 17 CPC to the effect that in Page 3 of 6 // 4 // spite of due diligence the Plaintiffs/Petitioners could not have obtained the certified copy of the RORs before commencement of the trial. But by incorporating revision Khata numbers, it would give a better description to ‘Kha’ schedule property and will assist the Court to adjudicate the matter effectively. In the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited, reported in 2022 SCC Online 1128, in which at para-70, it has been held as follows:- “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (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 (a) the amendment does not result in injustice to the other side, (b) by the amendment, 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 (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) A prayer for amendment is generally required to be allowed unless (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim Page 4 of 6 // 5 // would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) In dealing with a prayer for amendment of the court should avoid a hypertechnical pleadings, approach, and liberal is ordinarily required especially where the opposite party can be compensated by costs. to be (vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. (xi) Where is sought before the amendment commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897” Page 5 of 6 // 6 // In view of the above, when the amendment sought for are only clarificatory and explanatory in nature and are necessary for effective adjudication of the suit and do not change the nature and character of the suit, the same should be allowed. The delay in filing the amendment application can be compensated by cost to the contesting Defendants. It further appears that it is not the case of either of the parties that by virtue of amendment the Petitioners take away the admission made in the suit. Also the Defendants will not be defenseless, if the amendment is allowed. In that view of the matter, this Court feels that amendment sought for should be allowed subject to payment of adequate cost to compensate the contesting Defendants. 7. Accordingly, the petition for amendment filed by the Plaintiffs is allowed subject to payment of cost of Rs.20,000/- (rupees twenty thousand only) to Opposite Party Nos.1 to 5, 7, 8, 11 to 13/contesting Defendants before learned trial Court along with the copy of the consolidated plaint. Consolidated plaint shall be filed and cost as aforesaid shall be paid to the contesting Defendants as named above within fifteen days, as aforesaid. 8. Since the suit is of the year 2007, learned trial Court shall make endevaour for early disposal of the suit. 9. Interim order dated 13th May, 2019 passed in IA No.479 of 2019 shall continue till the next date. Issue urgent certified copy of the order on proper application. (K.R. Mohapatra) Judge s.s.satapathy Page 6 of 6