Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack. Date: 17-Oct-2025 16:53:34 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.832 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Kalyan Swain …. Petitioner -versus- Ganeshram Sahu …. Opposite Party Advocate(s) appeared in this case:- For Petitioner : Mr.P.K.Nanda on behalf of Mr.J.Sahu, Advocate For Opposite Party : Mr.T.Nanda, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 14th October, 2025 B.P. Routray, J. 1. Present CMP is directed against the order dated 29th April 2025 of the learned Civil Judge (Sr.Division), Balangir passed in
Facts
C.S.No.173 of 2008, wherein the prayer of the defendant to amend his written statement has been refused. Page 1 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack. Date: 17-Oct-2025 16:53:34 2.
Legal Reasoning
member Bench of this Court in Modi Spinning (AIR 1977 SC 680) (supra) is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff's case and cause him irretrievable prejudice. 10. Consequently it must be held that when the amendment sought in the written statement was of such a nature as to displace the plaintiff's case it could not be allowed as ruled by a three-member Bench of this Court. This aspect was unfortunately not considered by the latter Bench of two learned Judges and to the extent to which the latter decision took a contrary view qua such admission in written statement, it must be held that it was per incuriam being rendered without being given an opportunity to consider the binding decision of a three-member Bench of this Court taking a diametrically opposite view.” 9. In the case at hand, as stated earlier, what is observed by the learned trial court that the defendant after thirteen years gap is seeking to alter his defence completely by deleting a portion of admission Page 8 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack. Date: 17-Oct-2025 16:53:34 made on his part and retracting thereof to substantiate his stand regarding the source of acquisition of the suit property, is found to be correct on the facts of the case. Such proposed amendment sought for by the defendant is creating a new story on his part with regard to his right over the suit land by retracting diametrically opposite to his earlier stand to deny the source from the ex-ruler, but creating the story with regard to merger of the estate in favour of the State, cannot be allowed to stand on behalf of the defendant by way of amendment. The prayer for amendment and the pleadings by way of amendment cannot just alter the position of the defence taken earlier by the defendant but completely contradicting his earlier stand, that too after such long gap of time of thirteen years. Therefore, no fault is found with the direction to the learned trial Judge refusing the prayer for amendment and the same is confirmed. 10.
Arguments
Heard Mr.P.K.Nanda on behalf of Mr.J.Sahu, learned counsel for the Petitioner and Mr.T.Nanda, learned counsel for the Opposite Party. 3. Present Opposite Party being the plaintiff filed the suit praying for declaration of right title over the suit Schedule-II land and confirmation of possession along with other consequential reliefs. The defendant appeared and filed his written statement on 22nd September 2009. However, the suit could not proceed substantially till 2024 though issues have been framed, but evidences were not adduced. The defendant in his petition dated 21st September 2022 prayed to amend the written statement on the ground that earlier lawyer appearing for him has mispresented certain facts in the written statement. 4. It is seen from copy of the petition (under Anenxure-3) that, the amendment proposed is substantial, whereby certain sentences relating to source of accrual of the suit property in favour of the defendant have been sought to be changed by way of deletion and substitution. It is objected by the plaintiff that the defendant cannot alter his defence after thirteen years of filing of his written statement Page 2 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack. Date: 17-Oct-2025 16:53:34 to withdraw the admissions made on his part and to create new story with regard to his source to succeed the property. 5. Learned trial court rejected the prayer for amendment stating that such withdrawal of admissions and change of defence diametrically contrary to the stand taken earlier is not permissible after thirteen years of filing of written statement. 6. It is true that the prayer for amendment of pleadings has to be dealt with a liberal approach. In Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another, (2022) 16 SCC 1, it has been observed, as follows:- “71. Our final conclusions may be summed up thus: 71.1. Order 2 Rule 2CPC 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 Page 3 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack. Date: 17-Oct-2025 16:53:34 (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: 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. Page 4 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack. Date: 17-Oct-2025 16:53:34 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 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. Gagninder Kr. Gandhi [Vijay Gupta v. Gagninder Kr. Gandhi, 2022 SCC OnLine Del 1897].)” 7. In the case at hand, the defendant has filed his written statement earlier in the year 2009 and after thirteen years, in the year 2022, he seeks to amend his pleadings in defence on account of change of his lawyer. The nature of proposed amendment, as seen from Annexure- Page 5 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack. Date: 17-Oct-2025 16:53:34 2&3, is relating to deletion of specific sentences appearing in different paragraphs of the written statement with regard to purchase of the suit schedule property by the mother of the defendant from ex-ruler and further, to substitute his stand in respect of the suit property as the same were acquired by him paying land revenue to the Government, describing new story relating to merger of the estates and denying the right of ex-ruler thereon. Along with the same, further story has been built up by the defendant with regard to his right over the suit property denying the claim of the plaintiff. 8. In Heeralal vrs. Kalyan Mal and others, AIR 1998 SC 618, it has been observed, as follows: “9. Now it is easy to visualize on the facts before this Court in the said case that the defendant did not seek to go behind his admission that there was an agreement of 25th January, 1991 between the parties but the nature of the agreement was sought to be explained by him by amending the written statement by submitting that it was not agreement of sale as such but it was an agreement for development of land.. The facts of the present case are entirely different and consequently the said decision also cannot be of any help for the learned counsel for the respondents. Even that apart the said decision of two learned Judges of this Court runs counter to a decision of a Bench of three learned Judges of this Court in the case of Modi Spinning and Waiving Mills Co. Ltd. v. Ladha Ram & Co. (1977) 1 SCR 728: (AIR 1977 SC 680). In that case Ray, C.J., speaking for the Bench had to Page 6 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack. Date: 17-Oct-2025 16:53:34 consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. In that case a suit was filed by the plaintiff for claiming a decree for Rs.1,30,000/- against the defendants. The defendants their written statement admitted that by virtue of an agreement dated 7th April, 1967 in the plaintiff worked as their stockist-cum-distributor. After three years the defendants by application under Order VI Rule 17 sought amendment of written statement by substituting paragraphs 25 and 26 with a new paragraph in which they took the fresh plea that the plaintiff was mercantile agent-cum-purchaser, meaning thereby they sought to go behind their earlier admission that the plaintiff was stockist-cum-distributor. Such amendment was rejected by the trial Court and the said rejection was affirmed by the High Court in revision. The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three learned Judges of this Court is a clear authority for the proposition that once the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of the three-member Bench of this Court was not Page 7 of 9 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Reason: Authentication Location: Orissa High Court, Cuttack. Date: 17-Oct-2025 16:53:34 brought to the notice of the Bench of two learned Judges that decided the case in Akshaya Restaurant (supra). . In the latter case it was observed by the Bench of two learned Judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant (1995 AIR SCW 2277) (supra) proceed on an assumption that it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However the aforesaid decision of the three-
Decision
In the result, the CMP is dismissed. Judge ( B.P. Routray) C.R.Biswal, A.R.-cum-Sr.Seretary Page 9 of 9