The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Oct-2025 15:12:07 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.850 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Smt. Bidyut Lata Bardhan …. Petitioner -versus- Smt. Sanjukta Bardhan@Ray and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mrs. P. Jena, Advocate For Opposite Parties : Mr. A.P. Bose, Advocate For O.P. No.1 Mrs. M. Pal, Advocate For O.P. Nos.2 to 5 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 27th October 2025
Legal Reasoning
B.P. Routray, J. 1. Heard Mrs. P. Jena, learned counsel for the Petitioner, Mr. A.P. Bose, learned counsel for the Opposite Party No.1 and Mrs. M. Pal, learned counsel for the Opposite Parties 2 to 5. 2. Present C.M.P. is directed against order dated 17.12.2024 of learned 2nd Additional Senior Civil Judge, Balasore passed in C.S. No.709/833 of 2021, wherein the prayer for amendment of written statement filed by Defendant No.2 was refused. C.M.P. No.850 of 2025 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Oct-2025 15:12:07 3. Present Opposite Party No.2 being the Plaintiff has filed the suit praying for partition and other consequential reliefs. Defendant No.1 (present Opposite Party No.3) is the son and brother of the Plaintiff whereas Defendant No.3 (present Opposite Party No.1), Defendant No.4 (present Opposite Party No.4) and Defendant No.5 (present Opposite Party No.5) are the daughters of common ancestor and sisters of the Plaintiff. Present Petitioner, who is Defendant No.2, is the wife of common ancestor and mother of the Plaintiff. 4. Initially upon receipt of notice, Defendant No.2 filed her written statement. Subsequently, it is alleged on the part of the Defendant No.2 that said WS filed by her was at the instance of Defendant No.3 and she could not go through said written statement filed by her vividly and thereby some admissions have been made in favour of Defendant No.3. Coming to know the same later she wanted to amend her written statement thereby incorporating certain new facts by deleting facts earlier mentioned in the written statement filed by her. It needs to be mentioned here that prior to filing of such amendment petition by Defendant No.2 she filed a petition to withdraw the written statement filed by her entirely with permission to file the written statement afresh and the same was rejected by learned trial court with liberty granted in C.M.P. No.850 of 2025 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Oct-2025 15:12:07 favour of Defendant No.2 to bring such necessary amendment in her written statement. 5. It is now contended on behalf of Defendant No.2 that taking advantage of her advance age, Defendant No.3 prevail upon her to manage incorporation of such admissions in the written statement of Defendant No.2 to suit the case of Defendant No.3, which was subsequently realized by Defendant No.2. Therefore, the amendment was sought for. 6. The amendment prayed by Defendant No.2 is not objected by the Plaintiff and other Defendants except Defendant No.3. It is contended on behalf of Defendant No.3 that by way of amendment, the admissions earlier made by Defendant No.2 in her written statement cannot be permitted to be withdrawn and further, deletion of such part of statements of Defendant No.2 by incorporating fresh statements is beyond purview of the scope of Order 6 Rule 17 of the C.P.C. 7. The general principle of amendment is well settled in plethora of decisions of the Hon’ble Supreme Court of India. In Life Insurance C.M.P. No.850 of 2025 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Oct-2025 15:12:07 Corporation of India v. Sanjeev Builders Private Limited and Another, (2022) 16 SCC 1, it has been held as follows:- “71. Our final conclusions may be summed up thus: 71.1. Order 2 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 2 Rule 2CPC is, thus, misconceived and hence negatived. 71.2. 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 6 Rule 17CPC. 71.3. The prayer for amendment is to be allowed: 71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties. 71.3.2. 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 do 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). 71.4. A prayer for amendment is generally required to be allowed unless: C.M.P. No.850 of 2025 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Oct-2025 15:12:07 71.4.1. 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. 71.4.2. The amendment changes the nature of the suit. 71.4.3. The prayer for amendment is mala fide, or 71.4.4. By the amendment, the other side loses a valid defence. 71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs. 71.6. 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. 71.7. 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. 71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint. 71.9. 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. 71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign C.M.P. No.850 of 2025 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Oct-2025 15:12:07 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. 71.11. Where the amendment is sought before 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. Gaginder Kr. Gandhi.) ” 8. Further, the Hon’ble Supreme Court in M. Revanna v. Anjanamma, (2019) 4 SCC 332, have held that; “7. Leave to amend may be refused if it introduces a totally the different, new and inconsistent case, or challenges fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after C.M.P. No.850 of 2025 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Oct-2025 15:12:07 commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.” 9. In the case at hand, it is alleged by Defendant No.2 that Defendant No.3 by practicing fraud upon her has managed to incorporate certain facts in her written statement to suit the case of Defendant No.3. But on examination of the facts of the case, where Defendant No.2 has filed her written statement separately through a separate lawyer, such contentions put forth by Defendant No.2 is not found prima facie true. It is for the reason that Defendant No.2 has put her signature in the written statement in English and it is not disputed that she is not an illiterate lady unable to understand the contents of the written statement filed by her. The allegations of manipulation in the statement of Defendant No.2 made in her written statement is not substantiated by materials to justify her contention that Defendant No.3 could prevail upon her fraudulently to make such contentions in her C.M.P. No.850 of 2025 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Oct-2025 15:12:07 written statement. It is well known that the admission made by a party cannot be withdrawn subsequently by way of amendment and the scope of amendment cannot be extended to such extent permitting the party to withdraw the admissions made by her to cause prejudice to other side. From the description of proposed amendments sought at paragraph 4 and other paragraphs of the amendment petition filed by Defendant No.2, and in comparison of the same to the earlier facts and admissions made by her in the written statement, it is no more unseen that such admissions made by her in the written statement has been sought to be substituted by new facts, which is definitely not permissible within the scope of Order 6 rule 17 of the C.P.C. 10. Thus, looking to the facts of the case so also the previous contentions of Defendant No.2 made in her written statement, the order of the learned trial court refusing to allow the amendment cannot be faulted with warranting interference by this Court. 11. In the result, the order of the learned trial court is confirmed and the C.M.P. is dismissed. B.K. Barik/Secretary (B.P. Routray) Judge C.M.P. No.850 of 2025 Page 8 of 8