The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Apr-2024 16:31:16 IN THE HIGH COURT OF ORISSA AT CUTTACK RVWPET NO.45 OF 2024 Pratap Beura and another …. Petitioners Mr. Amit Prasad Bose, Advocate -versus- Rajkishore Beura and others …. Opp. Parties Mr. P. Jena, Advocate (For Opp. Party Nos.1 to 3)
Legal Reasoning
Mr. Ajodhya Ranjan Dash, Advocate (For Opp. Party Nos.5 to 8) Order No. 02. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 22.04.2024 This matter is taken up through hybrid mode. Order dated 21st March, 2024 is sought to be reviewed in this petition, whereby CMP No.01 of 2024 filed by the Petitioners assailing the order dated 19th December, 2023 passed by learned Civil Judge, Kujang in CS No.305 of 2020 rejecting an application for amendment of the plaint, has been dismissed. 3. Mr. Bose, learned counsel for the Petitioners submits that amongst other, this Court, while dismissing the CMP, took note of the fact that the Plaintiffs-Petitioners had earlier filed an application under Order VI Rule 17 CPC for amendment of the plaint. On 18th July, 2023, learned counsel for the Plaintiffs filed a memo not to press the said application, which was allowed. It was observed by this Court that no liberty was granted to the Plaintiffs-Petitioners to move fresh application under Order VI Rule 17 CPC. Thus, subsequent application under Order VI Rule 17 CPC is hit by the principles of res judicata which applies to the different stages of the said suit or proceeding also. Drawing attention of this Court to the Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Apr-2024 16:31:16 withdrawal of the petition, learned counsel for the Petitioners submits that the Plaintiffs had, in fact, filed petition to withdraw the petition for amendment seeking permission to file a fresh one with better particulars. The said application was served on learned counsel for the Defendants. Considering the said application, learned trial Court permitted the Petitioners to withdraw the petition for amendment vide order dated 31st August, 2023. Thus, it is implied that while allowing the application for withdrawal of the petition for amendment, learned trial Court had granted liberty to the Petitioners to file fresh one. As such, learned trial Court was not correct in holding that a subsequent application without seeking permission of the Court to file an application under Order VI Rule 17 CPC is not maintainable. He, however, submits that the said fact was known to the learned counsel for the Opposite Parties, but they did not bring it to the notice of this Court at the time of adjudication of CMP. Had the aforesaid position of law been brought to the notice of this Court, the order would have been different. Learned counsel for the Petitioners, in course of argument, also submits that he withdrew the preview application under Order VI Rule 17 CPC seeking liberty to file a fresh one with better particulars. Although learned trial Court while allowing withdrawal of the petition did not explicitly granted permission, but when the Court was entertaining application under Order XXIII Rule 1 (2) CPC, it is implied that leave for filing a fresh application under Order VI Rule 17 CPC was granted. He, therefore, prays for review of the order. 4. Mr. Jena, learned counsel for Opposite Party Nos.1 to 3 submits that order dated 31st August, 2023 is clear to the effect that no permission was granted to the Petitioner to file a fresh application under Order VI Rule 17 CPC. Although no liberty was granted to Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Apr-2024 16:31:16 file a fresh application, the said order was not challenged and thus attained its finality. Hence, the Petitioners are stopped to raise such plea in the review petition at a belated stage. 5. Mr. Sarangi, learned counsel for the Opposite Party No.4 submits that the brief has been transferred. Hence, he has no instruction in the matter. 6. Mr. Dash, learned counsel for the Opposite Party Nos.5 to 8 submits that the order sought to be reviewed was not passed solely on the ground as raised by Mr. Bose, learned counsel for the Petitioners. This Court while adjudicating the CMP has also discussed other grounds raised by learned counsel for the parties and passed the order on merit. He drew attention of this Court to paragraph 8 of the order sought to be reviewed, which reads as under: “8. It also appears that the Plaintiffs want to delete the prayer for partition as the Defendants-Opposite Parties have pleaded that there has already been partition by metes and bounds. If the Petitioners accepts that there has been an earlier partition by metes and bounds, they are not entitled to introduce the plea as set out in the proposed amendment. Thus, considering the proposed amendment from every angle, it is not clear as to how the same is necessary for just adjudication of the suit.” 7. He further submits that if it is at all assumed that liberty was granted to the Petitioners to file a fresh application under Order VI Rule 17 CPC. But the CMP fails on other grounds. Hence, he prays for dismissal of the review petition. 8. Taking into consideration the submission made by learned counsel for the parties and on perusal of the record, it appears that although an application was filed by the Plaintiffs-Petitioners to withdraw the previous application under Order VI Rule 17 CPC seeking liberty to file a fresh one, but order dated 31st August, 2023 Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Apr-2024 16:31:16 by which, the said petition was considered, clearly reveals that no prayer was granted to the Petitioners to file a fresh application while allowing the prayer for withdrawal of the petition under Order VI Rule 17 CPC. The said order was never challenged. It further appears that in the petition under Order VI Rule 17 CPC filed subsequently, the Petitioners have not stated that they were granted liberty to file a fresh application under Order VI Rule 17 CPC. Thus, it appears that the Petitioners have accepted order dated 31st August, 2023. 9. Be that as it may, the CMP was not dismissed solely on the ground that the previous application under Order VI Rule 17 CPC was dismissed without granting liberty to file a fresh one. Other contentions raised by learned counsel for the parties were taken into consideration while adjudicating the CMP. 10. As such, this Court is not inclined to review the order passed in CMP No.01 of 2024. 11. Accordingly, the review petition stands dismissed. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4