The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.426 OF 2024 (An application under Article 227 of the Constitution of India) * * * * Mruganka Sekhar Chhotaray and others -versus- …. Petitioners Baijayanati Mangaraj …. Opp. Party Advocates appeared: For Petitioners : Miss Deepali Mahapatra, Advocate For Opp. Party : Mr. Bibekananda Bhuyan, Advocate CORAM:
Decision
JUSTICE K.R. MOHAPATRA --------------------------------------- Heard and disposed of on 27.08.2024 --------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. This matter is listed today to consider I.A. No.987 of 2024 for vacation of stay filed by the Plaintiff-Opposite Party. 3. In course of hearing of the interim application, this Court feels that merit of the case has to be gone into. Hence, on consent of learned counsel for the parties, the CMP is taken up for final disposal. 4. Order dated 12th March, 2024 (Annexure-10) passed in C.S. No.442 of 2023 is under challenge in this CMP, whereby learned Civil Judge (Senior Division), Bhubaneswar rejected an Page 1 of 6 // 2 // application filed by the Defendants-Petitioners for amendment of the written statement. 5. Miss Mahapatra, learned counsel for the Petitioners submits that the suit has been filed by the Plaintiff-Opposite Party for partition. Partition of the suit land is claimed on the basis of a compromise decree in C.S. No.1238 of 2022. 5.1. It is submitted that the Defendants-Petitioners filed an application in CMA No.222 of 2023 for setting aside said compromise decree passed in C.S. No. 1238 of 2022 alleging that it was obtained by practicing fraud. Said application is still pending for consideration. Thus, in the present the suit, an application under Order VI Rule 17 C.P.C. was filed to bring on record the facts with regard to pendency of CMA No.222 of 2023 filed by the Defendants-Petitioners. Said application was rejected on two grounds, i.e., firstly, an application under Order VI Rule 17 C.P.C. for amendment was filed after commencement of the trial and secondly, amendments sought for are not necessary for the purpose of determining the real question in controversy between the parties to the present suit. 5.2 Miss Mahapatra, learned counsel for the Petitioners further submits that application for amendment was filed on 10th January, 2024 and hearing of the suit commenced from 18th January, 2024 without framing any issue. From the above, it appears that the application for amendment was filed prior to commencement of the trial of the suit. Only because it was considered after commencement of the trial, the Defendants- Petitioners should not be held liable for the same. It is her submission that amendments sought for are necessary for just Page 2 of 6 // 3 // adjudication of the suit as the basis on which the suit for partition was filed is under challenge in CMA No.222 of 2023. The same being relevant for proper adjudication of the suit cannot be brushed aside at the time of adjudication of the suit. The application in CMA No. 222 of 2023 was filed after filing of the written statement. Thus, the Defendants-Petitioners had no occasion to plead such facts in the written statement. Amendment sought for will no way prejudice the Plaintiff- Opposite Party as it is in the nature of clarification and explanation. As such, in view of the ratio decided in the case of Life Insurance Corporation of India –v- Sanjeev Builders Pvt. Ltd. and another, reported in 2022 SCC Online SC 1128, learned trial Court should have taken a pragmatic view and allowed the petition for amendment. 6. Mr. Bhuyan, learned counsel for Opposite Party vehemently objects to the same. It is his submission that amendment is not material fact for just adjudication of the suit. The validity of the compromise decree in C.S. No. 1238 of 2022 is under challenge in CMA No.222 of 2023, which will be adjudicated in the said petition. Even if a preliminary decree for partition is passed in the present suit, that will be subject to the order passed in CMA No.222 of 2023. Further, the validity of the compromise decree in C.S. No.1238 of 2022 is not an issue in the present suit. Thus, pendency of CMA No.222 of 2023 is not material to be considered for adjudication of the present suit as rightly observed by learned trial Court. He, therefore, submits that the CMP merits no consideration and is liable to be dismissed. Page 3 of 6 // 4 // 7. Upon hearing learned counsel for the parties and on perusal of the materials on record, it appears that in C.S. No.1238 of 2022, a decree was passed on compromise. Subsequently, CMA No.222 of 2023 has been filed by the Defendants-Petitioners to set aside the compromise decree alleging that the decree of compromise was obtained by fraud and misrepresentation. Said application was filed during pendency of the present suit, that too after filing of the written statement. Thus, the Defendants-Petitioners had no occasion to plead facts with regard to pendency of CMA No.222 of 2023 in the written statement. The subject matter of CMA No.222 of 2023 may not be material for just adjudication of the suit, but the same is relevant to be taken note of while adjudicating the present suit for partition. Admittedly, the present suit for partition is filed on the basis of the compromise decree passed in C.S. No.1238 of 2022. Thus, learned trial Court, while adjudicating the present suit, should keep in mind that CMA No.222 of 2023 assailing such compromise decree on the ground of fraud and misrepresentation is pending for consideration. Of course, learned trial Court need not go into the merit of CMA No.222 of 2023 while adjudicating the suit for partition, but the said fact should be brought to the notice of the Court during adjudication of the present suit for which the Defendants- Petitioners had filed a petition for amendment. The proposed amendment, if allowed, will certainly not prejudice the Plaintiff- Opposite Party as it is clarificatory and explanatory in nature, which took place after filing of the written statement by the Defendants-Petitioners. Page 4 of 6 // 5 // 8. Further, the order sheet of the suit clearly indicates that the petition for amendment was filed on 10th January, 2024 and hearing of the suit commenced from 18th January, 2024. Thus, learned trial Court has committed an error in holding that the petition for amendment was filed after commencement of the trial. The application for amendment was, of course, considered after commencement of the trial of the suit, but no fault can be attributed to the Defendants-Petitioners for the same. Further, proviso to Order VI Rule 17 C.P.C. does not put any embargo for consideration of an application for amendment even after commencement of the trial in a situation of the present nature. In the instant case, before commencement of the trial, the petition for amendment was filed, i.e. on 10th January, 2024 and apparently, hearing of the suit commenced from 18th January, 2024. As such, there was no legal impediment for learned trial Court to consider the petition for amendment. 9. Mr. Bhuyan, learned counsel for Opposite Party also does not dispute the same. 10. Hence, this Court is of the considered view that amendment sought for is relevant for just adjudication of the suit. As such, I am of the considered view that the proposed amendment should have been allowed. 11. Resultantly, the impugned order under Annexure-10 is not sustainable and is accordingly set aside. The Defendants- Petitioners shall be allowed to incorporate the amendment as proposed in the written statement. Consolidated written statement shall be filed within a period of three weeks hence Page 5 of 6 // 6 // before learned trial Court serving copy thereof on learned counsel for the Opposite Party-Plaintiff. 12. Since the parties to the suit have already entered appearance and trial of the suit has already commenced, parties are expected to cooperate with learned trial Court for early disposal of the suit. 13. The CMP is accordingly disposed of, but, in the circumstances, there shall be no order as to cost. 14. The interim order dated 15th May, 2024 passed in I.A. No.424 of 2024 stands vacated. (K.R. Mohapatra) Judge Orissa High Court, Cuttack, Dated the 27th August, 2024/bks Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Sep-2024 15:31:45 Page 6 of 6