The High Court · 2025
Case Details
Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Dec-2025 17:56:52 IN THE HIGH COURT OF ORISSA AT CUTTACK C.M.P. No.1117 of 2025 (In the matter of an application under Article 227 of the Constitution of India) Sri Srikanta Bandha and others …. Petitioners -versus- Sri Nageswar Bandha and others …. Opposite Parties Advocate(s) appeared in this case:- For Petitioners : Mr. J. Barik, Advocate For Opposite Parties : None CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 19th December 2025
Legal Reasoning
60. Having considered the previous judgments of this Court on counterclaims, the language employed in the rules related thereto, as well as the intention of the legislature, I conclude that it is not mandatory for a counterclaim to be filed along with the written statement. The court, in its discretion, may allow a counterclaim to be filed after the filing of the written statement, in view of the considerations mentioned in the preceding paragraph. However, propriety requires that such discretion should ordinarily be exercised to allow the filing of a counterclaim till the framing of issues for trial. To this extent, I concur with the conclusion reached by my learned Brothers. However, for the reasons stated above, I am of the view that in exceptional circumstances, a counterclaim may be permitted to be filed after a written statement till the stage of commencement of recording of the evidence on behalf of the plaintiff.” 7. In the given facts of the present case, the position of the suit is that the trial is yet to commence and the issues are yet to be framed. Upon death of the sole Defendant, his LRs were brought on record as Defendants 1(ka) to 1(jha). Taking note of the stage of the suit and the C.M.P. No.1117 of 2025 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Dec-2025 17:56:52 claim of the Defendants, no reason is seen to refuse acceptance of the amendment brought by them. As such, the impugned order dated 03.03.2025 of learned Civil Judge (Sr. Divn.), Basudevpur passed in C.S. No.60 of 2018 is set aside and the prayer for amendment sought by the Defendants is allowed. It is further observed that the Plaintiffs are at liberty to take appropriate steps, if any, in reply to the amended written statement and the counter claim. 8.
Arguments
B.P. Routray, J. 1. Heard Mr. J. Barik, learned counsel for the Petitioners. No-one appears on call for the Opposite Parties despite the name of the lawyers is indicated in the cause list. 2. Present C.M.P. is directed against order dated 03.03.2025 of learned Civil Judge (Sr. Divn.), Basudevpur passed in C.S. No.60 of 2018, wherein the prayer for amendment of the written statement by the Defendants 1 (ka) to 1(uan) has been refused. C.M.P. No.1117 of 2025 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Dec-2025 17:56:52 3. It is seen that admittedly the suit is at pre-trial stage and as per the contention of the Petitioners issues are yet to be framed in the suit. 4. Present Petitioners are Defendants 1(ka) to 1(uan) and they have filed their written statement on 25.04.2019. It is true that by petition dated 11.09.2023, i.e. almost after four years, they seek to amend the written statement to introduce certain facts including the counter claim against the Plaintiffs. 5. As per the principles in the matter of amendment, the amendment should ordinarily be allowed unless it changes the nature and character of the suit or causes prejudice to the adverse party or withdrawing the admissions made by him earlier. In Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another, (2022) 16 SCC 1, the Hon’ble Supreme Court has observed as follows:- “71. Our final conclusions may be summed up thus: 71.1. Order 2 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 2 Rule 2CPC is, thus, misconceived and hence negatived. C.M.P. No.1117 of 2025 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Dec-2025 17:56:52 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 (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. C.M.P. No.1117 of 2025 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Dec-2025 17:56:52 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. 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 C.M.P. No.1117 of 2025 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Dec-2025 17:56:52 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. Gaginder Kr. Gandhi.) ” 6. As seen from the copy of the amendment petition under Annexure-3, the Defendants want to amend the written statement including bringing the counter claim against the Plaintiffs. In Ashok Kumar Kalra vs. Wing CDR. Surendra Agnihotri & Ors., (2020) 2 SCC 394, the Hon’ble Supreme Court have held as follows:- “21. We sum up our findings, that Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim after filing the written statement, rather the restriction is only with respect to the accrual of the cause of action. Having said so, this does not give absolute right to the defendant to file the counterclaim with substantive delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in such cases have the discretion to entertain filing of the counterclaim, after taking into consideration and evaluating inclusive factors provided below which are only illustrative, though not exhaustive: (i) Period of delay. (ii) Prescribed limitation period for the cause of action pleaded. (iii) Reason for the delay. (iv) Defendant’s assertion of his right. C.M.P. No.1117 of 2025 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: BASANTA KUMAR BARIK Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Dec-2025 17:56:52 (v) Similarity of cause of action between the main suit and the counterclaim. (vi) Cost of fresh litigation. (vii) Injustice and abuse of process. (viii) Prejudice to the opposite party. (ix) And facts and circumstances of each case. (x) In any case, not after framing of the issues. xx xx xx
Decision
Accordingly, the C.M.P. is disposed of as allowed. (B.P. Routray) Judge B.K. Barik/Secretary C.M.P. No.1117 of 2025 Page 7 of 7