The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 17:53:52 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 17579 OF 2011 Sudeep Kumar Dey and others Petitioners Ms. P.S. Mohanty, Advocate on behalf of Mr. J. Pradhan, Advocate …. Pradeep Kumar Dey …. Opp. Party
Legal Reasoning
Mr. Dwarika Prasad Mohanty, Advocate -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 24.11.2023 14. 1. This matter is taken up through hybrid mode. 2. Order dated 10th May, 2011 (Annexure-4) passed by learned Civil Judge (Senior Division), Balasore in C.S. No.759 of 2008 is under challenge in this writ petition, whereby an application filed by the Plaintiff-Opposite Party for amendment of the plaint, has been allowed. 3. Ms. Mohanty, learned counsel being authorized by Mr. Pradhan, learned counsel for the Petitioners submits that the Defendants are the Petitioners in this writ petition. The suit has been filed for partition. Before commencement of trial, an application under Order VI Rule 17 CPC was filed by the Plaintiff-Opposite Party stating that his mother had executed a registered Will on 22nd June, 1990 by which she bequeathed Ac.4.36 decimals out of M.S. Khata No.47 and Ac.0.36 decimals out of Plot No.506 under Khata No.133. Likewise his father also executed a Will on 13th March, 1991 and bequeathed an area of Ac.1.41 decimals out of M.S. Khata No.1301 and Ac.0.36 decimals out of M.S. Khata No.123 in his favour. The said fact Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 17:53:52 // 2 // could not be pleaded in the plaint, as the Wills were not traceable. The Plaintiff could trace out the Will on 3rd May, 2011. Hence, the amendment application was filed. It is submitted that the Defendants-Petitioners filed objection to the said petitions stating that the Plaintiff had filed a probate case for probate of the Will dated 22nd June, 1990, which was dismissed on 3rd July, 2009. The execution of the alleged Wills were within the knowledge of the Plaintiff before filing of the suit. But, without taking such plea, the suit has been filed. Subsequently, when the Defendants filed an application under Order XII Rule 6 CPC to decide the suit in terms of their admission, the application under Order VI Rule 17 CPC was filed. Learned trial Court without considering the fact that by virtue of amendment, the Plaintiff wants to change the foundation of the plaint and try to introduce a completely new story, allowed the application observing that the party producing such Will without probate should be allowed with an opportunity to plead about the Will, which will throw light for effective disposal of the suit. He also relied upon the decision in the case of Revajeetu Builders & Developers –v- Narayanaswamy and Sons and others, reported in 2009 (II) OLR (SC) 815, in which it is held that the amendment which is imperative for proper adjudication of the suit, should be allowed. 4. Ms. Mohanty, learned counsel further submits that the amendment sought for is an afterthought and designed to mislead the Court. The amendment petition itself is not bona fide. Hence, the impugned order under Annexure-4 is not sustainable. Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 17:53:52 // 3 // 5. Mr. Mohanty, learned counsel for the Plaintiff-Opposite Party, on the other hand, submits that there is no legal bar to introduce a pleading with regard the Will even though probate case in respect of one of the Wills was dismissed. In a probate case, title of the party is not decided. Further no probate proceeding in respect of the Will dated 13th March, 1991 was filed. He further submits that the Will was not traceable till 3rd May, 2011 as averred in the petition for amendment. Taking the same into consideration and the fact that those Wills are necessary for just adjudication of the suit, learned trial Court allowed the petition for amendment. Hence, the same warrants no interference. 6. Considering the submissions made by learned counsel for the parties and on perusal of the record, it appears that the Plaintiff has never taken any plea with regard to the execution of the Wills dated 22nd June, 1990 allegedly executed by his mother and 13th May, 1991 executed by his father in the plaint. The plea that the Wills were not traceable earlier and it could be traced out on 3rd May, 2011, is a myth, as the Plaintiff had filed a probate case in respect of the registered Will dated 22nd June, 1990, which was dismissed on 3rd July, 2009. Thus, the proposed amendment is not bona fide. Alleged execution of both the Wills were within the knowledge of the Plaintiff at the time of filing of the suit in the year, 2008. 7. It also appears that the Defendants have filed the written statement admitting the claim of the Plaintiff and filed an application under Order XII Rule 6 CPC to adjudicate the suit in terms of such admission. At that juncture, an application under Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 24-Nov-2023 17:53:52 // 4 // Order VI Rule 17 CPC was filed probably with an intention to frustrate the petition filed by the Petitioners under Order XII Rule 6 CPC. If the proposed amendment is allowed, it will completely change the foundation of the plaint. These materials aspects were lost sight of by learned trial Court while adjudicating the petition under Order VI Rule 17 CPC. Hence, the impugned order under Annexure-4 is not sustainable and is accordingly set aside. 8. 9. The writ petition is, accordingly, allowed. Interim order dated 13th July, 2011 passed in Misc. Case No.9869 of 2011 stands vacated. 10. Since the suit is of the year, 2008, learned trial Court should make all endeavour to see that it is disposed of at an early date. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4