The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK W.P.(C) No.17292 of 2023 Pratima Behera & another ....... Petitioners -Versus- Kuni Behera and others ……. Opposite Parties For Petitioners : Mr. B.S. Rayaguru, Advocate For Opp. Parties : Mr. S.K. Sahoo, Advocate (for Opposite Party No.1) ----- CORAM: JUSTICE SANJAY KUMAR MISHRA _____________________________________________________________ Date of Hearing and Judgment: 27.02.2024 ______________________________________________________________ S.K. MISHRA, J. 1. This Writ Petition has been preferred by the Petitioners, who are the legal heirs of Late Manaranjan Behera and have been arrayed as Opposite Party Nos. 3 and 4 before the Court below in M.A.C. No.19 of 2018, challenging the order dated 23.02.2023 passed in the said case, vide which the Petition filed by the mother- in-law of the Petitioner No.1 for amendment of the claim petition was rejected on the ground that if such an amendment is allowed, it W.P.(C) No.17292 of 2023 Page 1 of 15 would cause hardship to the Opposite Party No.1-Insurance Company necessitating it to file additional Show Cause. Another ground of rejection of such Petition is that if such an amendment is allowed, the same would not only protract the hearing but also put the Opposite Party No.1 with hardship to defend its case for no fault so also on the ground that this Court in TRP(C) No.13 of 2022 has targeted the said matter in directing the Tribunal to dispose of the case within a specific period. 2. Though notices were duly served on the Opposite Party Nos. 1 to 3, excepting Opposite Party No.1, who is the claimant before the Court below, the Insurance Company (Opposite Party No.3) and the owner of the vehicle (Opposite Party No.2) go unrepresented. 3.
Facts
The brief background facts, which led to filing of the present Writ Petition, are that the husband of the Petitioner No.1, namely, Late Manaranjan Behera died on 21.09.2017 in a road accident. At the time of death of Late Manaranjan Behera, the Petitioner No.1, who is the wife of Late Manaranjan Behera, was pregnant. After sad demise of her husband, she was neglected by the members of her in-law’s family, for which she came to her parents and resided with them. After giving birth to Petitioner No.2, as the parents of the Petitioner No.1 are poor, she came to Cuttack to reside with her uncle, who is working as Mason and worked with her uncle to earn W.P. (C) No.17292 of 2023 Page 2 of 15 her livelihood. The Petitioner No.1, being a distress lady, having a small child, is running through stringent financial condition and unable to maintain herself as well as her small child. As such, she has to depend upon her uncle. However, she filed one motor accident claim case before the 1st M.A.C.T.-Cum-1st Additional District Judge, Cuttack, which was registered as M.A.C. Case No.826 of 2018 praying for compensation towards death of her husband, who died in a road accident. The mother-in-law of Petitioner No.1 (present Opposite Party No.1) also filed one motor accident claim case before the M.A.C.T.-Cum-District Judge, Boudh, which was registered as M.A.C. No.19 of 2018. The said Court, vide order dated 18.08.2018, issued notice to the present Petitioners to appear on 17.09.2018 and to file Show Cause. The Petitioner No.1, being arrayed as one of the Opposite Parties in the said case, knowing about the filing of said case,
Legal Reasoning
approached this Court in TRP (C) No.13 of 2022 for transfer of M.A.C. No.19 of 2018 pending in the Court of District Judge-Cum-M.A.C.T., Boudh to the Court of 1st Additional District Judge-Cum-M.A.C.T., Cuttack for proper adjudication, fair trial and convenience of the Petitioner No.1, she being a distress lady and Petitioner No.2, being a small child. W.P. (C) No.17292 of 2023 Page 3 of 15 This Court vide order dated 19.12.2022 had been pleased to dispose of TRP (C) No.13 of 2022. Instead of directing to transfer M.A.C. No.19 of 2018 to Cuttack for analogous hearing with M.A.C. Case No.826 of 2008 as prayed for, it was observed in the said order that the Petitioners will not press M.A.C. Case No.826 of 2018 filed before the Court of 1st Additional District Judge-Cum-M.A.C.T, Cuttack and will file an application to that effect within a period of seven days from the said date. The District Judge-Cum-M.A.C.T., Boudh, was directed to dispose of M.A.C. No.19 of 2018 by the end of April, 2023, if there is no other legal impediment. Thereafter, an I.A. was filed in the disposed of case for modification of order dated 19.12.2022 passed in TRP (C) No.13 of 2022. This Court had been pleased to allow the said I.A. fixing a deadline for disposal of M.A.C. No.19 of 2018 extending the said period by another one month. Pursuant to the order dated 19.12.2022 passed in TRP (C) No.13 of 2022, the Petitioners moved an application to withdraw the M.A.C.
Decision
Case No.826 of 2018, which was disposed of as withdrawn vide order dated 20.01.2023. After obtaining the certified copy of the order dated 20.01.2023, the Petitioners appeared before the District Judge-Cum- M.A.C.T., Boudh on 28.01.2023, as they have been arrayed as Opposite Party Nos. 3 and 4 in M.A.C. No.19 of 2018. Thereafter, the W.P. (C) No.17292 of 2023 Page 4 of 15 matter was posted to 07.02.2023. On the said date, the present Opposite Party No.1, who is the mother-in-law of Petitioner No.1, filed an application to amend the income of the deceased, as mentioned in Column No.6 of the claim petition of M.A.C. No.19 of 2018. Apart from the same, the monthly contribution of the deceased was also sought to be amended as mentioned in Column No.21 and Para 23 (E) of the said claim petition. Though no objection was filed to the said petition for amendment by any of the Opposite Parties, the Court below passed the impugned order on 23.02.2023, thereby rejecting the petition of the present Opposite Party No.1 for amendment of the claim petition. Hence, this Writ Petition. 4. Mr. Rayaguru, learned Counsel for the Petitioners submits, though the present Opposite Party No.3-Insurance Company (Opposite Party No.1 before the Court below) did not file written objection to the said petition filed by the mother-in-law of Petitioner No.1 and the evidence is yet to commence, the Court below, instead of allowing the said petition for amendment, rejected the same on flimsy ground that it will cause hardship to the Opposite Party No.1 necessitating it to file additional Show Cause. Mr. Rayaguru further submits, the main cause of rejecting the application of the Petitioners for amendment is, the Court below was under pressure for expeditious hearing of the matter, being so directed by this Court in TRP(C) No.13 of 2022. He W.P. (C) No.17292 of 2023 Page 5 of 15 further submits, without any basis, the Court below also gave an observation vide impugned order that allowing such application for amendment would not only protract the hearing but also put Opposite Party No.1 with hardship to defend its case even though the Opposite Party No.1 Insurance Company did not file any objection opposing the said prayer made by the Petitioner No.1’s mother-in-law seeking amendment of the claim petition with regard to income of the her deceased son. The Opposite Party No.1 was justified to do so as she was not aware about the real income of her son at the time of filing of claim petition. After ascertaining the same from the present Petitioner No.1, her mother-in-law filed the application for amendment of the claim petition with regard to income of her deceased son so also related figures accordingly. He further submits, the present Petitioners, being arrayed as Opposite Parties, could not have filed application for amendment of the claim petition. Mr. Rayaguru, relying on the judgment of the Apex Court in Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another, reported in 2022 SCC OnLine SC 1128, submits, the Court below was not justified to reject such application as the Insurance Company was the main contestant before the Court below and despite giving opportunity, it did not file any objection to the said petition. He further submits, in the present case also, being W.P. (C) No.17292 of 2023 Page 6 of 15 noticed, the Insurance Company i.e. Opposite Party No.3 also choose not to appear and oppose the prayer made before this Court to set aside the impugned order and direct the Court below to accept the prayer of the Opposite Party No.1 for amendment of the claim petition. 5. As the learned Counsel for the Petitioners relies on the judgment of the apex Court in Life Insurance Corporation of India (supra), it would be apt to extract below Paragraphs 66 and 70 of the said judgment. “ 66. The two provisos referred to above, deal with the question of permitting the plaintiff to amend his plaint. It is not, as if, in the absence of these two provisos, it is not permissible in law for the plaintiff to in his pleading by carry out an amendment introducing a relief for enhanced compensation. Rule 17 of Order VI of the CPC does confer power on a Court to allow a party to alter or amend his pleading in such manner and on such terms as may be just. This rule does not stop at that, but it further says that all such amendments should be made as may be necessary for the purpose of determining the real question in controversy between the parties. It is pertinent to note that this provision which empowers the court in its discretion to permit a party to amend his pleadings, was already on the statute book, when the Specific Relief Act, 1963 was enacted. It can, therefore, be presumed that when the latter legislation was on the anvil, the Parliament was aware of this power of the court to permit amendment of pleadings. Therefore, it cannot be successfully urged that a suit for specific performance falling under the provisions of the Act, 1963 would not be governed by the provisions of the CPC. It is, therefore, clear that to such a suit the provisions contained in Order VI Rule 17 of the CPC would apply and a plaintiff who has earlier failed to incorporate the reliefs for compensation or who has incorporated the reliefs for compensation but seeks amendment in the same, could seek the permission of W.P. (C) No.17292 of 2023 Page 7 of 15 the court to introduce these reliefs by way of amendment. 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 in claim, divesting of the other side of a valuable accrued right (in certain situations). resulting (iv) A prayer required to be allowed unless for amendment is generally (i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time W.P. (C) No.17292 of 2023 Page 8 of 15 barred becomes a relevant consideration, factor for (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 hypertechnical approach, and is ordinarily required to be liberal the opposite party can be especially where compensated by costs. (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 framed separately for decision. limitation issue of (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. W.P. (C) No.17292 of 2023 Page 9 of 15 (xi) 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 for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.” is necessary (Emphasis supplied) 6. Admittedly, the present Petitioners, who are the wife and minor son of the deceased Late Manaranjan Behera, are the principal claimants so far as claim case is concerned and they had rightly approached the Court of M.A.C.T.-Cum-1st Additional District Judge, Cuttack in M.A.C.T. Case No.826 of 2018 claiming compensation. As the coordinate Bench was not inclined to transfer M.A.C. No.19 of 2018 from the Court of District Judge-Cum-M.A.C.T., Boudh to the Court of M.A.C.T.-Cum-1st Additional District Judge, Cuttack for analogous hearing with M.A.C.T. Case No.826 of 2018, as prayed for, the learned Counsel for the Petitioners undertook to withdraw M.A.C.T. Case No.826 of 2018 and participate in M.A.C. Case No.19 of 2018. The relevant Paragraphs of the said order dated 19.12.2022 are extracted below: W.P. (C) No.17292 of 2023 Page 10 of 15 “ 3. This transfer petition has been filed seeking transfer of MAC Case No. 19 of 2018 from the file of learned MACT-Cum- District Judge, Boudh to the Court of learned MACT-Cum- 1st Additional District Judge, Cuttack. 4. It is the main contention of the learned counsel for the Petitioner that after the death of her husband the Petitioner is residing at Cuttack and she has filed claim case in MAC Case No. 826 of 2018 in the Court of learned MACT–Cum-1st Additional District Judge, Cuttack. But the mother-in-law has initiated the other claim in MAC Case No. 19 of 2018 in the Court of learned MACT–Cum-District Judge, Boudh. This Court after going through the Petition filed by the O.P. No. 1, finds that the Petitioner in MAC Case No. 19 of 2018 is the mother in law and she has also impleaded the present Petitioners as Opp. Party Nos. 3 & 4. O.P. No. 1 in her claim Petition has also prayed that the compensation amount be released in full in favour of the Petitioner & O.P. Nos. 3 & 4. 5. Mr. Mishra, learned counsel appearing for the O.P. No. 1 submitted that in the aforesaid MAC Case No. 19 of 2018 the insurer has already entered appearance and has filed the written statement. 6. Considering the submissions made by the learned counsel for the Petitioners, this Court is not inclined to allow the prayer as made in the present transfer petition. However, since it is submitted by Mr. B.S. Rayaguru, learned counsel for the Petitioners that the Petitioners will not press MAC Case No. 826 of 2018 filed by her before learned MACT –Cum- 1st Additional District Judge, Cuttack and will file an application to that effect within a period of seven (7) days from today, learned MACT –Cum- District Judge, Boudh is directed to dispose of MAC Case No. 19 of 2018 by the end of April 2023, if there is no other legal impediment.” (Emphasis supplied) W.P. (C) No.17292 of 2023 Page 11 of 15 Similarly, it would be apt to extract below the prayer made by the present Opposite Party No.1 before the M.A.C.T.-Cum-District Judge, Boudh. “ PRAYER In the circumstances stated above it is prayed that the Hon’ble Court/Tribunal be graciously pleased to grant compensation in full to the Petitioner and O.P. Nos. 3 and 4 as claimed in Column 21 of the claim petition with 18% interest from the date of claim till realization with costs.” 7. Admittedly, the present Petitioners should have been arrayed as co-petitioners/claimants in M.A.C. No.19 of 2018. However, the present Opposite Party No.1, who is the claimant Petitioner in M.A.C. No.19 of 2018, arrayed her daughter in-law and grand son as Opposite Parties. After disposal of TRP (C) No.13 of 2022 by the coordinate Bench, only after their appearance in M.A.C. No.19 of 2018, coming in contact with her daughter in-law i.e. the present Petitioner No.1, who must be well aware about the real income of her deceased husband, an application under Order 6, Rule 17 of the Code of Civil Procedure, 1908 on 07.02.2023 for amendment of the claim petition was filed pertaining to monthly income of her deceased son so also various figures in different columns of the claim petition. 8. Since the hearing of the said case did not commence as on date of filing of the said petition for amendment, this Court is of the view that the Court below ought to have allowed the said petition for W.P. (C) No.17292 of 2023 Page 12 of 15 amendment in absence of any objection to the said effect by the contesting Opposite Parties giving opportunity of filing Show Cause / additional Show Cause to the Parties in response to the amended claim petition. Since the present Petitioners, even though have been arrayed as Opposite Parties in M.A.C. No.19 of 2018, are co-claimants and a prayer has been made by the claimant to award the compensation amount in favour of the Petitioner/claimant as well as Opposite Party Nos. 3 and 4 (present Petitioners), they have rightly approached this Court seeking for a direction for setting aside the impugned award dated 23.02.2023 passed in M.A.C. No.19 of 2018, with a further prayer to allow the petition filed by the present Opposite Party No.1 (mother-in-law of the Petitioner No.1) for amendment of the claim petition in M.A.C. No.19 of 2019. 9. From the facts as detailed above so also the settled position of law, as extracted above, this Court is of further view that since the application for amendment was moved before the trial commenced and irrespective of the claim made before the claims Tribunal, it has to be adjudicated based on various factors for determination of the real compensation amount to be awarded and evidence is to be led before the Tribunal to substantiate the claim amount, the Tribunal ought to have taken a liberal view for amendment of the claim petition pertaining to the income of the deceased husband of Petitioner No.1 W.P. (C) No.17292 of 2023 Page 13 of 15 giving opportunity to the contesting Opposite Parties to have their further say by way of additional Show Cause. 10. As it seems from the impugned order, the Court below, being under pressure because of the direction given by the coordinate Bench for expeditious hearing of the said case, vide order 19.12.2022 passed in TRP (C) No.13 of 2022, has passed the impugned order with an observation that if such amendment is allowed, it may protract hearing of the case and may cause hardship to the Opposite Party No.1-Insurance Company. Such observation made by the Court below is baseless and imaginary, particularly in absence of any objection to the said effect filed by the contesting Opposite Parties. In view of the aforesaid facts and settled position of law, the impugned order dated 23.02.2023 deserves to be set aside. Accordingly, the same is set aside. 11. The Court below is directed to allow the petition filed by the Opposite Party No.1 for amendment, who is the Petitioner before the Court below and give opportunity to the contesting Opposite Parties to file Additional Show Cause, if so desired, and thereafter, proceed further in accordance with law. As the claim application is pending since 2018, the Court below shall do well to conclude the said proceeding at the earliest, preferably within a period of four months from the date of production of the certified copy of this order. W.P. (C) No.17292 of 2023 Page 14 of 15 12. In order to avoid delay, this Court directs the Parties to appear before the Court below on 18.03.2024 along with the certified copy of this order. The Court below shall intimate the other contesting Opposite Parties through their Counsels and proceed further, as directed above. 13. Accordingly, the Writ Petition is allowed and disposed of. No order as to cost. (S.K. MISHRA) JUDGE Orissa High Court, Cuttack Dated, 27th February, 2024/Padma Signature Not Verified Digitally Signed Signed by: PADMA CHARAN DASH Designation: Personal Assistant Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 08-Mar-2024 07:53:47 W.P. (C) No.17292 of 2023 Page 15 of 15