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-Jun-2023 19:00:46 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 14052 OF 2023 Debajani Nayak …. Petitioner Mr. Biswa Prakash Dhal, Advocate Nabakishor Khuntia -versus- …. Opp. Party Ms. Ruchi Rajgarhia, Advocate (Caveat) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 21.06.2023 01. 1. This matter is taken up through hybrid mode. 2. Order dated 13th April, 2023 (Annexure-5) passed by learned Civil Judge (Senior Division), Kamakhyanagar in Mat Case No.19 of 2020 is under challenge in this writ petition, whereby an application filed by the Petitioner under Order VI Rule 17 C.P.C. has been rejected. 3. It is submitted by Mr. Dhal, learned counsel for the Petitioner that Mat Case No.19 of 2020 has been filed by the Opposite Party for restitution of conjugal right. During cross- examination, the Opposite Party avoided to provide information regarding the educational qualification of the Petitioner although he was aware of the same. It is the case of the Petitioner that she was persuaded to discontinue her studies when she was pursuing her Post Graduate course at Utkal University, Vani Vihar, Bhubaneswar. Thus, it was necessary on the part of the Petitioner to bring this fact on record. Accordingly, an application under Order VI Rule 17 C.P.C. (Annexure-3) was filed. Learned trial Court opining that trial of the Mat Case has 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-Jun-2023 19:00:46 // 2 // already commenced and the facts sought to be introduced by way of amendment were in the knowledge of the Petitioner, rejected the application. Hence, this CMP has been filed. 4. It is his submission that the proposed amendment is necessary for just adjudication of the Mat Case. According to Mr. Dhal, learned counsel for the Petitioner all amendments should be allowed which are necessary for determining the real question of controversy and does not cause prejudice to the other side. It is his submission that the amendment being formal in nature will not prejudice the Opposite Party in any manner. Inconvenience to be caused to the Opposite Party, if any, can be compensated by adequate cost. In support of his case, he relied upon the case of Life Insurance Corporation of India –v- Sanjeev Builders Private Limited and another, reported in 2022 SCC OnLine SC 1128, in which at Paragraphs-70(ii) and (viii), it has been held as under: “70. Our final conclusions may be summed up thus: xxx xxx xxx for determining (ii) All amendments are to be allowed which the real are necessary 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. xxx xxx xxx (viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.” He, therefore, submits that the amendment sought for should be allowed. 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-Jun-2023 19:00:46 // 3 // 5. Ms. Rajgarhia, learned counsel for the Opposite Party refuting the submission made by Mr. Dhal, learned counsel for the Petitioner submits that during cross-examination of the Opposite Party, he was put questions with regard to educational qualification of the Petitioner, which he denied as it was not within his knowledge. The same could not be a cause of action to file an application under Order VII Rule 17 C.P.C. after commencement of trial, more particularly, when the proposed amendment was in the knowledge of the Petitioner. 6. The petition under Order VI Rule 17 C.P.C. neither discloses the cause of action for filing of such petition nor it is provided therein that in spite of due diligence such an amendment could not have been sought before commencement of trial. On perusal of the proposed amendment, it is clear that it is neither necessary nor proper for just adjudication of the Mat Case. Since the Opposite Party has already been examined and discharged, amendment of the written statement at this stage will certainly prejudice the Opposite Party. Thus, she submits that the petition for amendment has rightly being rejected by learned trial Court. 7. Considering the submissions made by learned counsel for the parties and on perusal of the record, this Court finds that the application for amendment was filed after commencement of trial that too after the Opposite Party was discharged. Perusal of the petition under Annexure-3 does not disclose any cause of action for filing of such application at such a belated stage. It is also not clear from the petition that whether such an amendment is necessary for just adjudication of the Mat Case. The case law 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-Jun-2023 19:00:46 // 4 // cited by Mr. Dhal, learned counsel for the Petitioner is of no assistance to the Petitioner as there is no material on record to ascertain that the amendment sought for was necessary for determining the real question in controversy. As submitted by Ms. Rajgarhia, learned counsel for the Opposite Party, the amendment sought for, if allowed, would certainly prejudice the Opposite Party, as he has already been discharged after adducing evidence. 8. It also appears that by virtue of proposed amendment, the Petitioner sought to introduce a new fact, which was not there in her pleading. Further the amendment sought for was in the knowledge of the Opposite Party before commencement of trial. No explanation has been offered as to why such an amendment was not sought for before commencement of trial. In that view of the matter, I find no infirmity in the impugned order under Annexure-5. 9. Accordingly, the writ petition being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4