Paramananda Nayak & Ors. v. Narana @ Narayan Jena & Ors.

ORDER 03.05.2023

This matter is taken up through hybrid mode.

The Petitioners in this CMP seek to assail the order dated 6th March, 2023 (Annexure-4) passed by learned 1st Additional Senior Civil Judge, Balasore in C.S. No.587 of 2011, whereby he refused to recall the order dated 19th December, 2022 vacating the order dated 27th February, 2020 by which a petition for amendment of the plaint was allowed.

Mr. Mohanty, learned counsel for the Petitioners submits that C.S. No.587 of 2011 has been filed for declaration and permanent injunction. During pendency of the suit, an application under Order VI Rule 17 C.P.C. was filed by the Plaintiffs-Petitioners for amendment of the plaint, which was allowed vide order dated 27th February, 2020. The Plaintiffs- Petitioners were also directed to file a copy of the consolidated plaint and serve the copy of the same on the Defendants. Although the Plaintiffs-Petitioners filed the consolidated plaint, but copy of the same was not served on the Defendants. The // 2 // matter was thereafter adjourned on six occasions. But the Plaintiffs-Petitioners could not comply with the said order by serving the copy of the consolidated plaint on the Defendants. On 19th December, 2022, the matter was posted for office note on the amended plaint. On that date, only Defendant No.5 appeared. None had appeared on behalf of the Plaintiffs-Petitioners. Thus, learned trial Court holding that the order of the Court for serving of the consolidated plaint on the Defendants has not been complied with by them recalled the order dated 27th February, 2020 by which the petition for amendment was allowed. Thus, finding no other alternative, the Plaintiffs-Petitioners filed an application to recall the order dated 19th December, 2022, which was rejected vide order dated 6th March, 2023 (Annexure-4) holding that the Plaintiffs-Petitioners were afforded ample opportunity to serve the copy of the amended plaint on the Defendants, which they failed.

3.1 It is his submission that by virtue of recall of the order of amendment, the Plaintiffs-Petitioners will be seriously prejudiced and they will be deprived to assert their right in the suit. Thus, a further opportunity should be given to the Plaintiffs-Petitioners subject to the condition to be fixed by this Court.

Considering the submission made by learned counsel for the Petitioner and on perusal of the record as well as keeping in mind that the suit is of the year, 2011, this Court is of the considered opinion that issuance of notice to the Defendants- Opposite Parties for their response will further delay in disposal of the suit. // 3 //

Fact remains that the petition for amendment of the plaint was allowed vide order dated 27th February, 2020 and the Plaintiffs-Petitioners had already filed the consolidated plaint, but for some reason or other, they could not serve the copy of the amended plaint on the Defendants. It is also not disputed by learned counsel for the Petitioners that in spite of several adjournments, copy of the amended plaint could not be served on the Defendants.

Since the Plaintiffs-Petitioners are ready and willing to serve the copy of the amended plaint on the Defendants subject to the condition to be fixed by this Court, this Court feels that the Plaintiffs-Petitioners should be given a further opportunity to comply with the same. Accordingly, the orders dated 19th December, 2022 and 6th March, 2023 under Annexure-4 passed by learned trial Court in C.S. No.587 of 2011 are set aside and the Plaintiffs-Petitioners are directed to serve the copy of the consolidated plaint on the Defendants within a period of two weeks hence along with cost of Rs.5,000/- (Rupees five thousand) each to the Defendant Nos.5 and 6, who had objected to the petition for recall of the order dated 19th December, 2022 (Annexure-4). BIJAY KUMAR SAHOO SAHOO 17:39:27 +05'30'

Since the CMP is disposed of without issuing notice to the Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge