Ananda Marg Pracharaka Sangha v. (For Opp. Party Nos.1 to 4)

Mr. Nityabrata Behuria, Advocate (For Opp. Party Nos.1 to 4) CORAM: JUSTICE K.R. MOHAPATRA Order No. ORDER 24.04.2023

This matter is taken up through hybrid mode.

Order dated 17th April, 2018 (Annexure-6) passed by learned 2nd Additional Civil Judge (Senior Divisiion), Cuttack in C.S. No. 487 of 2010 is under challenge in this CMP, whereby an application filed by the Petitioner under Order VI Rule 17 C.P.C. for amendment of the plaint has been rejected.

Mr. Moharana, learned counsel for the Petitioner submits that after commencement of the trial, the General Secretary of the Plaintiff-Sangha, namely, Madhuotananda Abadhut, came to know that its Advocate is not conducting the suit properly and after going through the plaint and written statement, it came to light that certain materials necessary for proper adjudication of the suit were not pleaded. Hence, an application under Order VI Rule 17 C.P.C. was filed. Although at para-7 of the petition for amendment (Annexure-5), the Plaintiff-Petitioner vividly described that in spite of due diligence, the amendment sought // 2 // for could not have been introduced before commencement of the trial, learned trial Court erroneously holding that the Plaintiff has not explained its due diligence for filing of the petition for amendment after commencement of the trial, rejected the same.

3.1 Mr. Moharana, learned counsel further submits that the plea with regard to due diligence of the Plaintiff was completely ignored by learned trial Court while adjudicating the petition under Order VI Rule 17 C.P.C.. Hence, he prays for setting aside the impugned order under Annexure-6 and for a direction to allow the petition for amendment of the plaint.

Mr. Behuria, learned counsel for Opposite Party Nos.1 to 4 submits that the suit was filed in the year, 2010 and trial of the suit commenced in the year, 2011. P.W.1 was also recalled on the prayer of the Plaintiff to mark certain documents. However, after examination of four witnesses on behalf of the Plaintiff, an application for amendment of the plaint was filed on 24th November, 2017. As such, filing of the petition for amendment is not, at all, bona fide. The explanation with regard to due diligence, even if is taken into consideration, the Plaintiff cannot improve upon his case. Hence, learned trial Court has committed no error in dismissing the application for amendment.

Considering the rival contentions of the parties and on perusal of the record, it appears that trial of the suit commenced in the year, 2011. P.W. 1 was recalled on the prayer of the Plaintiff and he exhibited certain documents. After examination of four witnesses, that too after lapse of six years after commencement of the trial, the petition for amendment of the // 3 // plaint was filed. Although at paragraph-7 of the Petition under Order VI Rules 17 C.P.C. the Plaintiff has explained its purported due diligence in not filing such an application before commencement of the trial, but the same is not sustainable inasmuch as the Plaintiff explained about the change in internal management of Sangha and the Advocate engaged by the Plaintiff-Petitioner did not conduct the suit properly. It is also stated therein that some of the materials were not within the knowledge of the Plaintiff. Such explanation did not satisfy the requirement of proviso to Order VI Rule 17 C.P.C., more particularly when Madhuotananda Abadhut, who has filed the suit in the capacity of General Secretary of the Plaintiff’s Sangha, had filed the petition for amendment. It further appears that P.W. 1 on the prayer of the Plaintiff was recalled and he was permitted to exhibit certain documents, which shows that learned counsel for the Petitioner was taking interest in conducting the suit to the best of his ability. Although it is alleged that some of the materials were not within the knowledge of the Plaintiff, but there is no averment in the petition to the effect that as to when it came to the notice of the Plaintiff. As such, this Court feels that the application under Order VI Rule 17 C.P.C. after commencement of the trial would not be maintainable. Hence, learned trial Court has committed no error in dismissing the petition for amendment.

In view of the discussion made above, even if the matter is remitted back to the learned trial Court for fresh adjudication of the petition for amendment, it would not improve the case of // 4 // the Petitioner. As such, I find no infirmity in the impugned order. Accordingly, this CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge