Heard Mr v. Jena, learned
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Sep-2025 11:08:45 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.966 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Sri Karunakar Panda …. -versus- Petitioner Sri Pitambar Panda and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioner : Mr. V. Jena, Advocate For Opposite Parties : Mr. S.K. Mohanty, Advocate For O.P. No.1 CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 4th September 2025 B.P. Routray, J.
Legal Reasoning
1. Heard Mr. V. Jena, learned Advocate for the Petitioner and Mr. S.K. Mohanty, learned Advocate for the Opposite Party No.1. 2. Present C.M.P. is directed against the impugned order dated 13.5.2025 of the learned Senior Civil Judge (LR & LTV), Balasore passed in C.S. No.925 of 2020-I, wherein the prayer for amendment of the written statement by the Defendant No.4 has been rejected. C.M.P. No.966 of 2025 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Sep-2025 11:08:45 3. The Plaintiff, who is present Opposite Party No.1, filed the suit praying for partition. The suit is now at the stage of adducing evidence from the side of the Defendants and the Plaintiff has closed his evidence. Some of the Defendants’ witnesses have also been examined in the meantime. At this stage, Defendant No.4 filed a petition dated 29.4.2025 under Order 6 Rule 17 of the C.P.C. praying for amendment of the WS to incorporate certain facts regarding sale of portion of the ancestral property and relinquishment on the part of the daughter of the common ancestors. Learned trial court rejected the prayer for amendment stating that the property which has been sold by the common ancestors prior to filing of the suit need not be included in the suit property and secondly, the grounds stated by the Defendants are baseless and devoid of merit. 4. As seen from the schedule of amendment sought for by Defendant No.4 in his petition dated 29.4.2025, he wants to incorporate certain facts at paragraph 3, 7 and other parts of his written statement as detailed out in the impugned order. The prayer for amendment was objected by the Plaintiff as well as rest of the Defendants. C.M.P. No.966 of 2025 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Sep-2025 11:08:45 5. Order 6 Rule 17, C.P.C. permits the trial court to allow the party to alter or amend the pleadings as may be necessary for the purpose of determining the real question in controversy, provided that the same could not be brought by the party in spite of due diligence. 6. As seen in the instance case, the Defendant No.4 has prayed for incorporation of such facts that were not come into existence recently pending the suit nor it was the statement of the Defendant No.4 that the same were not in his knowledge at the time of filing of the WS. The fact that the balance property mentioned in the amendment petition was already sold by the father of the parties as Karta of undivided family and moreover no dispute with regard to such sale is raised by any of the parties. Thus, as stated by the learned trial court that the fact of sale of such lands which remains undisputed by all the parties is not necessary to be brought on record, is found without any fault. So, it is seen that the amendments in respect of the sale of the property by the Karta during his life time is not necessary for determining the controversy in issue between the parties. 7. It is submitted by Mr. Jena, learned counsel for the Petitioner that, the fact of relinquishment of share by the sisters or lady members C.M.P. No.966 of 2025 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Sep-2025 11:08:45 of the family in respect of the suit property upon receipt of the amount out of the sale consideration money, has not at all been considered by the learned trial court while refusing the prayer for amendment. 8. It needs to be answered here that this is not a fact that came to the knowledge of the Defendant No.4 after filing of his WS, which otherwise mean that it was within the knowledge of Defendant No.4 earlier also. The restriction as imposed in Rule 17 of Order 6 of the C.P.C. with regard to excuse regarding due diligence by the party, the Hon’ble Supreme Court in the case of M. Revanna v. Anjanamma, (2019) 4 SCC 332, have held that; “7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the 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 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. C.M.P. No.966 of 2025 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Sep-2025 11:08:45 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. Further, in Rajkumar Gurawara v. S.K. Sarwagi and Co. (P) Ltd., (2008) 14 SCC 364, it is held as follows:- “12. In order to consider whether the appellant-plaintiff has made out a case for amendment of his plaint, it is useful to refer Order 6 Rule 17 CPC which reads as under: “17. Amendment of pleadings.—The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be 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 trial.” The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this Rule is subject to proviso appended therein. The said Rule with proviso again C.M.P. No.966 of 2025 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Sep-2025 11:08:45 substituted by Act 22 of 2002 with effect from 1-7-2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings are able to satisfy the court that in spite of due diligence they could not raise the issue before the commencement of trial and the court is satisfied with their explanation, amendment can be allowed even after commencement of the trial. 13. To put it clear, Order 6 Rule 17 CPC confers jurisdiction on the court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pre-trial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to satisfy the conditions prescribed in the proviso.” 10. In the case at hand, it is found from the amendment petition dated 29.4.2025 that not a single line of explanation has been offered by Defendant No.4 that he could not bring such facts earlier in the WS despite due diligence on his part. Defendant No.4 has not at all touched this aspect in his petition for amendment. In other words, he has not C.M.P. No.966 of 2025 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Sep-2025 11:08:45 given any explanation or reason for not bringing such facts earlier in his WS. Admittedly the suit has progressed to the advanced stage when the witnesses from the side of the Plaintiff has already been examined and the evidence from the Plaintiff’s side has been closed. Not only that, but some of the witnesses from the side of the Defendants have now already been examined. 11. At this stage, if the prayer for amendment as prayed by Defendant No.4 is allowed, the progress of the suit will be geared reverse to the stage of making the pleadings and may also lead adducing further evidence from both sides. Definitely this is not the object under Order 6 Rule 17, C.P.C. and unless the party explains his reasons of failure on his part to bring such facts at appropriate time of the proceeding, the prayer for amendment should not be allowed. The reasons of explanation may be looked at a liberal view but without the same, it cannot be condoned. 12. As stated above, since the Defendant No.4 has not explained any reason for not bring such facts earlier in his WS, such prayer for amendment at this stage can be stated to be intended to linger the proceeding and causing prejudice to the adversary. Thus, the learned C.M.P. No.966 of 2025 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 08-Sep-2025 11:08:45 trial court has rightly refused the prayer for amendment and no infirmity is seen in the impugned order. 13. Accordingly, the C.M.P. is dismissed. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.966 of 2025 Page 8 of 8