The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 666 OF 2022 Pramod Ranjan Mishra and another …. Petitioners Mr. Deo Kumar Ajmeria, Advocate -versus- Mitrabhanu Naik CORAM: …. Opp. Party Mr. H.K. Muduli, Advocate JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 05.01.2023 7. 1. This matter is taken up through hybrid mode. 2. The Petitioners in this CMP seek to assail the order dated 8th July, 2022 (Annexure-1) passed by learned Civil Judge (Junior Division), Sambalpur in C.S. No.30 of 2003, whereby an application filed by the Petitioners under Order VI Rule 17 C.P.C. has been rejected. 3. Mr. Ajmeria, learned counsel submits that the Defendants are the Petitioners in this CMP. C.S. No.30 of 2003 has been filed for declaration of right, title and interest and for recovery of possession by the Opposite Party. The Defendants-Petitioners upon receipt of notice, had filed their written statement since 2003. They had also filed a petition under Order VII Rule 11 C.P.C. to reject the plaint on the ground that the Plaintiff- Opposite Party has played fraud on the Court suppressing the fact that the matter was sub-judice before this Court in OJC No.13896 of 1998. The said application was rejected. Assailing the same, the Defendants-Petitioners preferred C.R.P. No.1 of 2017 before learned District Judge, Sambalpur, which was also dismissed. The Defendants-Petitioners assailing the order of dismissal passed Page 1 of 4 // 2 // in C.R.P. No.1 of 2017, preferred CMP No.259 of 2018, which was disposed of on 27th August, 2018 with the following order: “Learned District Judge in elaborate order came to hold that the allegation of fraud cannot be decided in an application for rejection of plaint. The same requires adduction of evidence. There being no jurisdictional error or perversity in the orders passed by the Court below, this Court is not inclined to interfere with the orders passed by the Court below. Accordingly, the petition is dismissed.” 4. In terms of the observation made by learned District Judge, while disposing of C.R.P. No.1 of 2017, the Petitioners filed an application for amendment of the written statement to incorporate the pleadings with regard to fraud played by the Plaintiff in filing the suit. However, learned trial Court observing that the allegation of fraud has already been considered by the Courts in a petition under Order VII Rule 11 C.P.C., rejected the petition. Hence, this CMP has been filed assailing the said order. 5. It is further contended that fraud vitiates entire proceeding. Further the person, who has played fraud on Court, is not entitled to the relief claimed. In that view of the matter, the averment with regard to fraud is necessary to be incorporated in the written statement for proper adjudication of the suit. This material aspect was lost sight of by learned trial Court while considering the petition under Order VI Rule 17 C.P.C.. He, therefore, prays for setting aside the impugned order under Annexure-1 and to allow the amendment proposed. 6. Mr. Muduli, learned counsel appearing for the Plaintiff- Opposite Party submits that by the time, the petition for amendment was filed, trial of the suit has already commenced. The Defendants-Petitioners had an opportunity to move for amendment much prior to commencement of trial. That having Page 2 of 4 // 3 // not been done, it cannot be construed that in spite of due diligence, they could not have sought for amendment before commencement of trial. Further the question of fraud has already been dealt in detailed by learned trial Court, revisional Court as well as this Court while adjudicating the matter under Order VII Rule 11 C.P.C.. Thus, learned trial Court has committed no error in dismissing the petition. 7. In course of hearing, Mr. Ajmeria, learned counsel for the Petitioners made a statement that due to outbreak and resurgence of COVID-19, the Defendants-Petitioners could not take step for amendment of the plaint earlier. 8. Taking into consideration the same, this Court vide order dated 8th December, 2022, directed the parties to produce certified copy of the order sheet from 19th April, 2021 till the date of filing of the petition for amendment. In compliance of the said order, Mr. Ajmeria, learned counsel for the Petitioner produces certified copy of the order sheet in the suit, which is taken on record. 9. Upon hearing learned counsel for the parties and on perusal of the record, it appears that vide order dated 19th April, 2021, a petition filed by the Defendants-Petitioners under Order IX Rule 7 C.P.C. was allowed. Thereafter, the matter was adjourned to several dates, but it does not appear that the Court work was restricted or suspended due to COVID-19 during that period. It was due to non-corporation of the lawyers, the matter was adjourned to different dates. But that cannot be a ground for non-filing of a petition for amendment of the written statement. 10. It further appears that while disposing of C.R.P. No.1 of 2017, learned District Judge, Sambalpur had made categorical observation to the effect that the allegation of fraud cannot be decided in an application under Order VII Rule 11 C.P.C.. Thus, Page 3 of 4 // 4 // the Petitioners could have filed an application for amendment of their written statement immediately after disposal of the C.R.P. No.1 of 2017 or in that case after disposal of CMP No.259 of 2018 on 27th August, 2018. But the Petitioners appeared to have not taken any step for amendment of the written statement. 11. Thus, in the facts and circumstance of the case, it cannot be said that in spite of due diligence, the Petitioners could not have sought for amendment of the written statement before commencement of trial. Had the petition for amendment been filed immediately after disposal of C.R.P. No.1 of 2017 or CMP No.259 of 2018, it could have been a case for consideration, but it does not appear so. 12. In that view of the matter, this Court is of the considered opinion that the Petitioners are not at all diligent in filing the petition for amendment. 13. Admittedly, hearing of the suit has already commenced and the Petitioners have been given opportunity to cross-examine the witnesses of the Plaintiff after the order setting an ex parte was set aside. 14. In view of the above, I find no infirmity in the impugned order under Annexure-1. 15. Accordingly, this CMP stands dismissed. 16. Since the suit is of the year, 2003, learned trial Court should make all endeavour for early disposal of the same giving opportunity of hearing to the parties concerned. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4