The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.565 of 2025 Kishore Kumar Agrawal@Banka & another …. Petitioners Mr. S.J. Mohanty, Advocate -Versus- Krishna Chandra Banka@Agrawal & others …. Opposite Parties None
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 15.05.2025 Order No. 01. 1. Heard Mr. Mohanty, learned counsel for the petitioners. 2. No notices are issued to opposite party Nos. 1 to 5 as the matter is disposed of at the stage of admission. No notice need be issued to proforma opposite party Nos.6 to 8 since the same is not necessary, hence, dispensed with. 3. Instant petition is filed by the petitioners challenging the impugned order dated 5th March, 2025 as at Annexure-6 passed in T.S. No.89 of 1998 by learned Civil Judge (Junior Division), Bargarh, whereby, an application seeking amendment of W.S. at the instance of opposite party Nos.1 to 5 in terms of Order 6 Rule 17 CPC was allowed. 4. Mr. Mohanty, learned counsel for the petitioners submits that the application for amendment at Annexure-4 is not in format and that apart, the proposed facts sought to be incorporated were Page 1 of 4 within the knowledge of the petitioners since of the stay of the suit was insisted upon in terms of Section 10 C.P.C. with a plea that question of title is pending decision before the Consolidation Authority in Consolidation Revision Case No.456 of 2000. It is submitted that after commencement of hearing of the suit with the examination of witness from the side of the petitioners, such an application under Order 6 Rule 17 CPC was moved and it was followed by the impugned order i.e. Annexure-6. The contention is that opposite party Nos.1 to 5 were not diligent enough to seek amendment of W.S. and the proposed amendment was well within their knowledge and therefore, it could not have been allowed by the learned Court below after such a long time, especially when, the hearing of the suit had already commenced. 5. A copy of the application under Order 6 Rule 17 CPC at Annexure-4 is perused. Admittedly, no schedule is appended to the same seeking the proposed amendment but such facts needed to be incorporated in the W.S. have been described therein. The Court is of the view that even though the application i.e. Annexure-4 is not in format but in substance essentially demands amendment of the W.S. So therefore, even it is not in format as alleged by Mr. Mohanty, learned counsel for the petitioners, upon such ground, the challenge to the amendment in the W.S. cannot be entertained. 6. The second limb of argument of Mr. Mohanty, learned counsel for the petitioners is that the proposed amendment was within the knowledge of opposite party Nos.1 to 5 since consolidation revision was filed by them and on such ground, stay of the suit under Section 10 C.P.C. was moved earlier. The suit is of the year 1998. The W.S. was filed by opposite party Nos.1 to 5 in the year, 1999 and it was followed by an additional W.S. in 2000. The application under Order 6 Rule 17 CPC reveals that the Page 2 of 4 proposed amendment is with a pleading that the suit is not maintainable in view of the bar under OCHPFL Act, 1972, as Defendant No.4 said to have filed Consolidation Revision Case No.456 of 2002. From the impugned order i.e. Annexure-6, the Court finds that stay of the suit was requested by defendant No.4 and the same was not entertained and it was rejected. Such is one of the grounds advanced by the petitioners opposing amendment of the W.S. It is stated that the hearing of the suit has commenced with the examination of one of the plaintiffs. Learned Court below as it appears allowed the amendment of W.S. subject to cost referring to the Apex Court decision in Life Insurance Corporation of India Vrs. Sanjeev Builders Private Limited and another 2022 SCC Online SC 1128, wherein, it has been observed that amendment of pleading should be ordinarily allowed liberally allowing the other side suitably compensated. 7. In the instant case, the suit is pending since 1998. The W.S. was filed way back in 1999 followed by an additional W.S. in 2000. Almost after 25 years, the amendment of W.S. was moved and only to incorporate the fact challenging the maintainability of the suit in view of the consolidation revision pending before the authority concerned. No reasonable explanation has been offered by defendants seeking such amendment after so many years, especially when, from the impugned order i.e. Annexure-6, there was clear objection from the side of the petitioners that such fact regarding pendency of revision was fully within the knowledge of the defendants. Law is well settled that after commencement of hearing of the suit, any of the parties seeking amendment of pleading is to satisfy the Court and offer plausible explanation for the delay, if any. In the case at hand, the defendants, namely, opposite party Nos.1 to 5, though, having such knowledge with regard to the Page 3 of 4 consolidation revision would have introduced the proposed amendment challenging the maintainability of the suit long back and the same having not been done, learned Court below could not have allowed the same liberally, especially when, the suit is a year- old one. Having said that, the Court reaches at a conclusion that the impugned decision by order dated 5th March, 2025 at Annexure-6 is liable to be interfered with on account of the delay and laches on the part of opposite party Nos.1 to 5. 8. 9. Accordingly, it is ordered. In the result, the CMP stands allowed. As a necessary corollary, the impugned order at Annexure-6 in T.S. No.89 of 1998 by learned Civil Judge (Junior Division), Bargarh is hereby set aside. In the circumstances, there is no order as to costs. 10. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CUTTACK Date: 16-May-2025 10:42:47 Page 4 of 4