The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 826 OF 2019 Jyotsnarani Patra and another …. Petitioners Mr. Soumya Mishra, Advocate -versus- Anindita Patra and others …. Opp. Parties Mr. Samir Kumar Mishra, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No. 9. 1. 2.
Decision
ORDER 23.02.2023 This matter is taken up through hybrid mode. Order dated 8th July, 2019 (Annexure-10) passed by learned Civil Judge (Senior Division), Jaleswar in C.S. No.1174 of 2010 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Opposite Parties under Order VI Rule 17 C.P.C. for amendment of the plaint has been allowed. 3. Mr. Mishra, learned counsel for the Petitioners submits that the Defendant Nos.2 and 3 in the suit are the Petitioners in this CMP. The suit has been filed for partition. The Plaintiffs are daughters of Defendant No.1 through his first wife and Defendant Nos.2 to 4 are the second wife and daughters born out of the wedlock of Defendant Nos.1 and 2. Defendant Nos.5 to 10 are purchasers of different parcels of suit properties. Subsequently, sisters of Defendant No.1 were also impleaded as Defendant Nos.11 to 14. During pendency of the suit, Defendant Nos.11 to 14 filed a petition for compromise relinquishing their share in the suit property in favour of Defendant No.2 and petition was allowed vide order dated 19th May, 2012 Page 1 of 4 // 2 // (Annexure-5). The order was never challenged and attained its finality. On the basis of the pleadings available on record, parties have led their evidence. At the stage of argument, an application for amendment of the plaint was filed by the Plaintiffs to incorporate a completely new fact stating that the Defendant No.1 had executed a sale deed on 4th January, 1991 in favour of Katyayani (mother of Plaintiffs) in respect of the property mentioned in the compromise petition. The property was acquired by Defendant No.1 from his own income. Thus, it was the self acquired property of Katyayani and Defendants have no right, title and interest over the said property. Consequently, compromise between Defendant Nos.11 to 14 and Defendant No.3 is not sustainable. The said amendment was allowed subject to payment of cost of Rs.300/- on the ground that it is formal in nature and the same is essential for just adjudication of the suit. It is also observed that it will not prejudice the Defendants. Assailing the said order, this CMP has been filed. 4. Mr. Mishra, learned counsel for the Petitioners further submits that the compromise between Defendant Nos.11 to 14 and Defendant No.3 relinquishing their share in later’s favour was allowed pursuant to the order dated 19th May, 2012 (Annexure-5). The amendment application was filed in the year, 2019, that too, at the stage of argument of the suit challenging the validity of such compromise. By allowing the amendment, learned trial Court not only passed an order contrary to the provisions of law, but also by such amendment, the Plaintiffs intend to take away the effect of compromise, which was never Page 2 of 4 // 3 // challenged. Hence, he prays for setting aside the impugned order under Annexure-10. 5. It is also submitted that said fact was known to the Plaintiffs-Opposite Parties at the time of filing of the suit. Hence, the amendment sought for is hit by the proviso to Order VI Rule 17 C.P.C. As such, learned trial Court has committed an error of law in allowing the amendment. Hence, the impugned order is liable to be set aside. 6. Mr. Samiar Kumar Mishra, learned counsel for Opposite Party Nos.1 and 2 submits that the impugned order cannot be held to be without jurisdiction. The Court has power to pass an order allowing the amendment of pleadings after commencement of the trial of the suit even at the stage of argument. After a compromise was entered into between Defendant Nos.11 to 14 and Defendant No.3, cause of action arose to file a petition for amendment. The Plaintiffs-Opposite Parties being women could not understand the intricacies of law. However, there is no absolute bar to allow the amendment even at the stage of argument if it is imperative for just adjudication of the suit. By allowing the amendment, learned trial Court has prevented multiplicity of litigation. Prejudice, if any, can be compensated by cost, which was also taken into consideration by learned trial Court by awarding cost for such amendment. As such, the impugned order warrants no interference. 7. Upon hearing learned counsel for the parties and on perusal of the record, it is apparent that the petition for amendment was filed at the stage of argument of the suit. On perusal of the petition for amendment under Annexure-8, it does Page 3 of 4 // 4 // not appear that in spite of due diligence, the Plaintiffs-Opposite Parties could not have sought for the proposed amendment before commencement of the trial. By introducing the amendment, an attempt is made to take away the effect of the order dated 19th May, 2012, which was never challenged. From the amendment sought for, it appears that the Petitioners had knowledge that the Defendant No.1 had executed a sale deed in favour of the mother of the Plaintiffs, namely, Katyayani, on 4th January, 1991. There was no impediment on the part of the Plaintiffs to bring on the said fact at the time of filing of the suit. Further, it also appears that the suit is at the stage of argument. Parties have already led their evidence on the materials available on record. At this stage, if such an amendment is introduced, the suit has to be reopened and in that process, Defendant Nos.2 and 3 will be highly prejudiced. These materials aspects were not taken into consideration by learned trial Court while allowing the amendment. Accordingly, the impugned order under Annexure-5 is set aside and the petition for amendment of the plaint filed by the Plaintiffs is dismissed. 8. In the circumstances, there shall be no order as to costs. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Page 4 of 4