The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 719 OF 2022 Pradeep Kumar Das Petitioner Mr. Rabi Narayan Behera, Advocate …. Niranjan Swain and others -versus- …. Opp. Parties Mr. P.K. Jena, Advocate (For Opp. Party No. 1) Mr. R.N. Prusty, Advocate (For Opp. Party No.4) CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 02.02.2024 3. 1. This matter is taken up through hybrid mode. 2. Order dated 13th July, 2022 (Annexure-5) passed by learned Senior Civil Judge, Rourkela in C.S. No.233 of 2016 is under challenge in this CMP, whereby an application filed by Defendant No.6-Petitioner under Order VI Rule 17 C.P.C. for amendment of the written statement has been rejected. 3. Mr. Behera, learned counsel for the Petitioner submits that the suit has been filed by the Plaintiff-Opposite Party No.1 to declare the registered Will dated 19th June, 2012 executed in favour of Defendant No.4 to be void ab initio and not genuine. The Plaintiff-Opposite Party No.1 also prays for a declaration that alienation of the suit premises by Defendant No.1 is also unlawful and for a declaration that letter dated 18th June, 2015 of Defendant No.1 permitting transfer of ownership of the suit premises in the name of Defendant No.6 is illegal and unlawful and for other consequential & ancillary relief. The Defendant Page 1 of 4 // 2 // No.6-Petitioner filed his written statement. After the Plaintiff- Opposite Party filed his evidence in affidavit, the Defendant No.6-Petitioner came to learn that there are some typographical errors in the written statement and some facts are necessary to be elaborated for just adjudication of the suit. Hence, he filed an application under Order VI Rule 17 C.P.C. for amendment of the written statement, which was dismissed vide order under Annexure-5. Assailing the same, this CMP has been filed. 3.1 It is his submission that by virtue of the proposed amendment, the Defendant No.6-Petitioner sought to describe the circumstances under which the Will was executed in favour of Defendant No.4. The Defendant No.4 has been set ex parte. Hence, in his absence, unless the circumstances under which the Will was executed are described, the Defendant No.6, who is the beneficiary of the sale deed, will be highly prejudiced. It is also submitted that the Defendants sought to introduce certain documents by way of amendment. In essence, describing the same, he filed an application under Annexure-2. Learned trial Court holding that the amendment sought for will not be helpful for proper adjudication of the suit as the Defendant No.6- Petitioner is the only a purchaser of the suit land and the suit is filed for declaration of the Will as invalid, rejected the petition. It is further held that hearing of the suit has already commenced. When the petition for amendment was filed, evidence in affidavit of the Plaintiff had already been filed. It is his submission that when the petition for amendment of the written statement was filed, P.W.1 was not cross-examined. Hence, it cannot be said that trial of the suit had already commenced. Page 2 of 4 // 3 // Further, proposed amendment is necessary for just adjudication of the suit. Hence, it should have been allowed. 4. Mr. Jena, learned counsel for the Plaintiff-Opposite Party No.1 vehemently objects to the same and relies upon the decision in the case of Vidyabai and others –v- Padmalatha and others, reported in AIR 2009 SC 1433, wherein it has been held at paragraph-11 as under: “11. From the order passed by learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. the The question, is as therefore, which arises to whether for trial had consideration commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. lieu of Filing of an affidavit examination in chief of the witness, in our opinion, would amount to ‘commencement of proceeding’.” in He also submits that amendment sought for is not relevant for just adjudication of the suit. Although the written statement was filed in the year, 2017, the petition for amendment was filed after more than five years, i.e. 4th April, 2022, which was rightly not accepted at such a belated stage. Thus, learned trial Court has committed no error in rejecting the petition under Order VI Rule 17 C.P.C. 5. Mr. Prusty, learned counsel for Opposite Party No.4 also supports the case of Mr. Jena, learned counsel for the Plaintiff- Opposite Party No.1. 6. Considering the submissions made by learned counsel for the parties, this Court finds that the Defendant No.6- Petitioner has not described the source of his knowledge about Page 3 of 4 // 4 // the circumstances of the execution of the Will. He has only explained a story describing the circumstances under which the Will was executed, but the source of knowledge has not been stated. Admittedly, he was neither a witness to the execution of the Will nor in any manner connected to execution of the Will. In that view of the matter, such an amendment at a belated stage should not be allowed. Further, documents sought to be incorporated in the list of documents of written statement can only be done by taking leave of the Court under Order XVIII Rule 1-A C.P.C. The same has not been done in the instance case. There are also other provisions under CPC to call for admit documents in evidence. Further, typographical error in the registration number of the Will does not affect the adjudication of the suit, as it has been correctly stated in the plaint itself. Admittedly, the petition for amendment was filed after the evidence-in-chief of the Plaintiff was filed without explaining the delay and circumstances for which it was filed at such a belated stage. Hence, this Court is not inclined to interfere with the impugned order under Annexure-5. 7. Accordingly, the CMP being devoid of any merit stands dismissed. 8. The interim order 12th August, 2022 passed in I.A. No.792 of 2022 stands vacated. Urgent certified copy of this order be granted on proper application. Signature Not Verified Digitally Signed bks Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 06-Feb-2024 12:12:13 (K.R. Mohapatra) Judge Page 4 of 4