The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.515 of 2025 1.Balakrushna Poi 2.Sanatan Poi 1.Karunakar Poi 2.Sukanti Poi 3.Ananda Poi 4.Kalyani Poi @ Padhi 5.Sitarani Jena @ Poi 6.Kaushalya Ghadei @ Poi 7.Chintamani Palei 8.Urimila Jena @ Palei 9.Pramila Das @ Paei 10.Satyabhama Hati @ Poi 11.Mrutyunjaya Swain 12.Muktikanta Swain …. Petitioners -versus- …. Mr.T.K.Mohanty, Advocate Opposite Party (Plaintiff in court below) ….
Legal Reasoning
Pro-forma Opposite Parties (Defendant No.3 to 11 in court below) Mr.Gopal Prasad Jena, Advocate (for O.P.1) CORAM: Order No. 01.
Decision
HON’BLE MS. JUSTICE SAVITRI RATHO ORDER 08.04.2025 (Through Hybrid mode) 1. Mr.Gopal Prasad Jena, learned counsel has filed Vakalatnama on behalf of opposite party No.1 in Court today, which is taken on record. 2. This CMP has been filed by the defendant Nos.1 and 2 challenging the impugned order dated 23.12.2024 passed by the learned Civil Judge (Senior Division), Nilgiri in Civil Suit No.13/2021 rejecting the application filed by them under Order-6, Rule-17 of C.P.C., for amending their written statement. 3. The suit had been filed by the plaintiff-opposite party No.1 against the Page 1 of 6 petitioners and opposite parties No.3 to 12 praying for: (a) The preliminary decree be passed against the defendants with respect to the plaintiff‟s legitimate share over the schedule-„B‟ property. (b) For deputation of civil commissioner for separate allotment of the plaintiff‟s legitimate share from the „B‟ schedule property and to make the preliminary decree final. (c) For other reliefs which he is entitled to get as per law and equity. 4. The schedule ‘A’ to the Civil Suit contains the genealogy of the parties while schedule ‘B’ contains the description of suit land. 5. Written statement had been filed on 17.10.2023 by defendants No.1 and 2 (petitioners) inter alia stating that plaintiff had no cause of action for filing this suit against the defendants and that the suit is not maintainable in the eye of law. At paragraph-5 of the written statement, it has been stated as follows: “5. That, it is true to say by the plaintiff that, „B‟ scheduled suit land has been recorded in the name of Radhu @ Radhashyam Poi, and that, after his death the same devolved upon the plaintiff and defendants, and that, the „B‟ scheduled suit land was the ancestral undivided joint family property of the parties. But is false to say by the plaintiff that, the same has not been portioned between the parties at any point of time. But in fact the suit land was amicably portioned between the parties and the parties to the suit were/are possessing the same, which fell into their respective share by virtue of amicable partition. It is also false to say by the plaintiff that Page 2 of 6 the entire „B‟ scheduled property is the home and homestead land of plaintiff and defendants.” 6. On 29.10.2024, the petitioners had filed an application under Order 6, Rule, 17 of CPC for amendment of the written statement. The proposed amendment is quoted below: “In paragraph No.5, in third line after the word " defendants" the words "No. 1 to 5" will be inserted and in same line the words "and that the 'B' scheduled suit land was the ancestral undivided joint family property of the parties" will be deleted.” 7. At this juncture, Mr.T.K.Mohanty, learned counsel for the petitioners prays for an adjournment. The prayer is refused as adjournment was prayed for in the midst of hearing. 8. An objection was filed by the plaintiff to the application stating that the trial had commenced and the suit was posted for evidence from the side of the defendants for which the defendants cannot be allowed to amend their written statement without showing due diligence and they cannot withdraw their admission by way of amendment and if at this stage the proposed amendment will be allowed, the trial will begin afresh for which the plaintiff will be highly prejudiced. It has also been stated that defendants No.6, 7 and 9 have relinquished their share in favour of the plaintiff and therefore defendant Nos. 1 and 2 in order to defeat the said compromise has filed the Page 3 of 6 amendment petition having a mala fide intention. 9. Perused the order dated 16.02.2024 and the impugned order dated 23.12.2024 (contained in Annexure-5). Perused the application under Order-6, Rule-17 of the C.P.C.(Annexure-3) and the objection of the plaintiffs (Annexure-4). 10. The learned trial Court has held that evidence from the side of the plaintiff has already been closed and after closure of evidence the petition for amendment of the written statement by the defendant No.1 and 2 has been filed and further held that defendant No.1 had made an admission in paragraph-5 of the written statement and wanted to withdraw the admission regarding ancestral property and this admission may be erroneous but cannot be explained and withdrawn by amendment to the pleadings. The Court has further held that in the instant case, the petition to the admission has been made erroneous and if the admission is withdrawn, the plaintiff would be highly prejudiced. 11. For better appreciation, Order-6 of Rule 17 is quoted below: “17.Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties; Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not Page 4 of 6 have raised the matter before the commencement of trial.” 12. From a perusal of the provision of Order-6, Rule-17 of the C.P.C., it is apparent that at any stage of the proceedings, the Court can allow amendment of the pleadings if it is satisfied that the amendments are necessary for determining the real question in controversy between the parties. But after introduction of the proviso, after trial has commenced, application for amendment cannot be allowed unless the Court comes to a conclusion that in spite of due diligence the party could not seek for amendment before commencement of the trial. 13. The reasons given by the learned trial court for rejecting the prayer for amendment are neither perverse or illegal. That apart, in view of the proviso to Order-6, Rule-17 of the CPC, it was incumbent on the part of the defendants to explain why the application for amendment could not have been filed before commencement of the suit in spite of exercise of due diligence by them. But there is no semblance of any explanation in the petition in this regard. 14. In the case of Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co: (1976) 7 SCC 320, it has been held by the Supreme Court that once a written statement containing admission in favour of the plaintiff has been filed, such admission cannot be withdrawn by way of amendment of the written statement. Page 5 of 6 15. In view of the aforesaid discussion, I do not find any ground to interfere with the order dated 23.12.2024. 16. The CMP is accordingly dismissed. Judge (Savitri Ratho) Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 10-Apr-2025 19:19:11 Page 6 of 6