The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2023 17:55:33 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 26871 OF 2011 Binoda Pradhan and others Petitioners Mr. A.C. Mohapatra, Advocate …. -versus- State of Odisha and others ….
Legal Reasoning
Opp. Parties Mr. Ajodhya Ranjan Dash, Additional Government Advocate (For Opp. Party Nos.1 to 3) CORAM: JUSTICE K.R. MOHAPATRA Order No. M.C. No.7506 of 2015
Decision
ORDER 21.08.2023 5. 1. This matter is taken up through hybrid mode. 2. This is an application for substitution of Petitioner No.1, who died on 19th January, 2015 leaving behind his legal heirs, more fully, described in the substitution petition. 3. Considering the submission of Mr. Mohapatra, learned counsel for the Petitioners and averments made, substitution of legal heirs of deceased Petitioner No.1, more fully, described in the schedule of the substitution petition [1(a) and 1(d)] is allowed. 4. Legal heirs of deceased Petitioner No.1 shall be substituted as Petitioner Nos.1(a) and 1(d) in his place. I.A is accordingly disposed of. Consolidated cause title filed in Court today is taken on 5. 6. record. (K.R. Mohapatra) Judge 6. W.P.(C) No. 26871 OF 2011 1. Order dated 2nd September, 2011 (Annexure-1) passed by learned Civil Judge (Junior Division), Jagatsinghpur in T.S. No.194 Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2023 17:55:33 // 2 // of 2001 is under challenge in this writ petition, whereby an application filed by the Plaintiffs-Petitioners under Order VI Rule 17 CPC for amendment of the plaint, has been rejected. 2. Mr. Mohapatra, learned counsel submits that the Plaintiffs are the Petitioners in this writ petition. The suit has been filed for permanent injunction and to restrain the Opposite Party Nos.1 to 3 from disbursing the compensation amount in favour of Defendants- Opposite Party Nos.4 to 21 along with ancillary and consequential relief. During pendency of the suit, the Opposite Party Nos.1 to 3 were restrained from releasing the compensation amount to Defendant Nos.4 to 18. In spite of the order of injunction, the Opposite Party Nos.4 to 18 managed to release the compensation amount in their favour. Accordingly, an application under Order XXXIX Rule 2-A CPC was filed and ultimately Opposite Party Nos.1 to 3 were convicted for violation of the order of injunction. The Petitioner in order to bring the subsequent developments on record filed an application under Order VI Rule 17 CPC. They also sought to incorporate a prayer of mandatory injunction for recovery of the compensation amount from Opposite Party Nos.4 to 18. Learned trial Court rejected the said application on the ground that since the Opposite Party Nos.1 to 3 have been convicted by learned Additional District Judge, Jagatsinghpur in F.A.O. No.8 of 2007 and the matter is sub-judice before this Court. Hence, this writ petition has been filed. 3. Mr. Dash, learned Additional Government Advocate appearing for the Opposite Party Nos.1 to 3 submits that the amendment sought for has been taken care of in a different proceeding and the matter was sub-judice before this Court at the Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2023 17:55:33 // 3 // relevant time. As such, learned trial Court has committed no error in dismissing the application for amendment. 4. Notice on Opposite Party Nos.4 to 25 was sent through Registered Post with A.D. in their correct address, as submitted by Mr. Mohapatra, learned counsel for the Petitioners. A.D. of such notice has not been returned. As such, the notice on Opposite Party Nos.4 to 25 is treated to be sufficient in view of the provision under Order V Rule 9(5) CPC. 5. Taking into consideration the submissions made by learned counsel for the parties, this Court finds that pursuant to the order dated 22nd September, 2011, learned trial Court restrained the Opposite Party Nos.1 to 3 from disbursing the compensation amount during pendency of the suit. However, during subsistence of the order of injunction, the same was disbursed in favour of Opposite Party Nos.4 to 18. Accordingly, an application under Order XXXIX Rule 2-A CPC was filed and learned Additional District Judge, Jagatsinghpur in F.A.O. No.8 of 2007 convicted the Opposite Party Nos.1 to 3 for violation of the order of injunction. That being an event that took place during pendency of the suit, was sought to be brought on record by the Plaintiffs-Petitioners. They further sought for incorporation of a prayer of mandatory injunction to direct recovery of compensation amount from Defendants-Opposite Party Nos.4 to 18. Since the amendment relates to event occurred during pendency of the suit and a consequential relief has also been sought for by the Plaintiffs- Petitioners, the said application should have been allowed by learned trial Court for complete adjudication of the lis. 6. In order to seek for the relief of mandatory injunction, the Petitioners are required to incorporate the foundational pleading Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Aug-2023 17:55:33 // 4 // thereto, which are subsequent events during pendency of the suit. Thus, the grounds on which learned trial Court rejected the petition for amendment are not sustainable. 7. Accordingly, the impugned order under Annexure-1 is set aside. The Plaintiffs-Petitioners are directed to file the consolidated plaint within a period of two weeks serving copy thereof on leaned counsel for the Defendants. 8. Since the suit is of the year, 2001, learned trial Court should make all endeavour to see that it is disposed of at an early date. 9. Interim order dated 1st November, 2011 passed in Misc. Case No.15227 of 2011 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4