The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.716 of 2025 Hasratun Begum …. Petitioner Mr. S. A. Nayeem, Advocate Razaf Ali Khan & others …. Opposite parties -Versus- Mr. P.K. Satapathy, Advocate for O.P. No.2
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK Order No.
Decision
ORDER 12.05.2025 01. 1. Heard Mr. Nayeem, learned counsel for the petitioner and Mr. Satapathy, learned counsel for opposite party No.2. 2. Notices to other opposite parties are hereby dispensed with as the same is considered not necessary. 3. Instant petition is filed by the petitioner challenging the impugned order dated 21st April, 2025 passed in connection with T.S. No.73 of 2002 as at Annexure-5 by learned Civil Judge, Senior Division, LR, Jagatsinghpur on the grounds stated therein. 4. The petitioner is the plaintiff and instituted the suit seeking partition in respect of the schedule property purchased by him and permanent injunction against the defendants in respect thereof with such other consequential reliefs. In the suit, the petitioner as the plaintiff moved the application under Order 6 Rule 17 CPC for amendment of the plaint as per Annexure-3. Upon receiving an objection at Annexure-4, learned court below declined such amendment of the pleading on the ground that the same is requested for at the fag end of the suit pending at the stage of argument and on account of delay and laches on the part of the petitioner. Page 1 of 5 5. Mr. Nayeem, learned counsel for the petitioner submits that the valuation of the suit is sought to be amended besides the name of the father of opposite party No.4 in the plaint wrongly mentioned as the son of late Samat Khan instead of late Ramjan Ali Khan and since, it is formal in nature, should have been allowed by learned court below, instead of the impugned order i.e. Annexure-5 and therefore, the impugned decision is liable to be interfered with. 6. On the contrary, Mr. Satapathy, learned counsel for opposite party No.2 vehemently objects amendment of the plaint at the stage of argument of the suit. It is further submitted that by such an amendment to the plaint as per Annexure-3, a valid defence of opposite party No.3 would be taken away and hence, it is not permissible and rightly, therefore, learned court below declined it and hence, the order under challenge at Annexure-5 is perfectly justified and in accordance with law. While advancing such an argument opposing the amendment of the plaint, Mr. Satapathy, learned counsel for opposite party No.2 placed reliance on the decision of the Apex Court in Life Insurance Corporation of India Vrs. Sanjeev Builders Private Limited and another 2022 (II) CLR (SC) 847 to contend that an amendment leading to the other side losing a valid defence should not be permitted. 7. A copy of the sale deed executed by the plaintiff is produced in the Court by Mr. Nayeem, learned counsel for the petitioner and the same is perused. It is claimed that the sale deed is marked as an exhibit before the learned court below. In the copy of the sale deed dated 16th October, 1999, the father’s name of the petitioner is mentioned as late Ramjan Ali Khan, in fact, in the WS of opposite party Nos.1 and 2, the pleading is to the effect that defendant No.4 and Faruque Ali Khan are claimed not as the sons of late Ramjan Ali Khan and Rahemat Khan respectively. The very status of opposite party No.4 not as a son of late Ramjan Ali Page 2 of 5 Khan is disputed before the learned court below. Since, the sale deed is marked as Ext.3 from the side of the plaintiff and as per the same, opposite party No.4 is shown and described as the son of late Ramjan Ali Khan, the fact which is questioned in the WS as made to appear from Annexure-2, even though, the hearing has been concluded and the suit is on the verge of disposal, the Court is of the considered view that it is unlikely to take away any such valid defence of the opposite parties. 8. In the decision (supra), the Apex Court outlined the principles to be followed while considering amendment of pleadings and for the better appreciation, the relevant extract of the same is reproduced herein below: “70. Our final conclusions may be summed up thus: (i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order II Rule 2 CPC is, thus, misconceived and hence negatived. (ii) All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word “shall”, in the latter part of Order VI Rule 17 of the CPC. (iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) to avoid multiplicity of proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and (c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations). (iv) a prayer for amendment is generally required to be allowed unless Page 3 of 5 (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration, (ii) the amendment changes the nature of the suit, (iii) the prayer for amendment is malafide, or (iv) by the amendment, the other side loses a valid defence. (v) in dealing with a prayer for amendment of pleadings, the court should avoid a hyper-technical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.51 (vi) where the amendment would enable the court to pin- pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed. (vii) where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation. (viii) amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. (ix) delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision. (x) where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed. before amendment (xi) where commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Others 2022 SCC Online Del 1897)” sought the is 9. Having regard to the pleadings on record and submissions of learned counsel for the respective parties and the conclusion Page 4 of 5 reached at above, the Court taking into the decision (supra) reiterates its view that with the amendment of plaint regarding the description of the name of the father of defendant No.4 is not to lead to any loss of a valid defence. Rather the Court is of the view that a wrong which has remained on record with regarding the pleading i.e. Annexure-1 vis-(cid:224)-vis the name of the father of opposite party No.4 (defendant No.4) is required to be corrected to regularize the same and it is also formal in nature. As regards the valuation of the suit, in absence of any serious objection received from Mr. Satapathy, learned counsel for opposite party No.2, the Court is of the view that the amendment in that regard is also to be sustained. In other words, the impugned decision by order dated 21st April, 2025 as at Annexure-5 of learned court below calls for no interference. 10. Accordingly, it is ordered. 11. In the result, the CMP stands allowed. As a necessary corollary, the impugned order in T.S. No.73 of 2002 as at Annexure-5 is hereby set aside allowing the amendment of the plaint to the extent aforesaid and as per Annexure-3 with a direction for the petitioner to file consolidated plaint to be received and thereafter, the suit is to be proceeded with for its disposal as per and in accordance with law. It is further directed that as such amendment of plaint is not inconsistent with the evidence on record, the petitioner shall have no liberty to recall any of witnesses already examined in the suit. In the circumstances, however, there is no order as to costs. 12. Urgent copy of this order be issued as per rules. Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 14-May-2025 11:18:05 Rojina (R.K.Pattanaik) Judge Page 5 of 5