The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Aug-2023 19:40:00 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 1257 OF 2019 Daitari Sahoo Petitioner Mr. Damodar Deo, Advocate …. -versus- Nrusingha Charan Sahoo and another …. Opp. Parties Mr. Swarup Kumar Pattnaik, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 29.08.2023 5. 1. This matter is taken up through hybrid mode. 2. Order dated 19th October, 2019 (Annexure-6) passed by learned Civil Judge (Senior Division), Second Court, Cuttack in C.S. No.98 of 2017 is under challenge in this CMP, whereby an application filed by the Plaintiff-Opposite Party No.1 under Order VI Rule 17 CPC for amendment of the plaint, has been allowed. 3. Mr. Deo, learned counsel for the Petitioner submits that the suit has been filed for declaration of right, title, interest, confirmation of possession and to declare the R.O.R. published in the name of Defendant No.1(present Petitioner) as illegal as well as for permanent injunction. The case of the Plaintiff is that the suit land stood recorded in the name of Bhagaban Sahoo and others in the Sabik R.O.R. He sold Ac.2.51 decimals of land to Maheswara Mohapatra, Mayadhara Mohapatra and others vide sale deed No.1983 dated 4th June, 1940. Out of the said property, the Petitioner has purchased the suit land and is possessing the same exercising right, title and interest thereon. After commencement of trial, an application for amendment under Page 1 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Aug-2023 19:40:00 // 2 // Order VI Rule 17 CPC was filed to introduce a plea that vide Registered Sale Deed No.2383 dated 30th June, 1941, recorded tenants sold Ac.1.94 decimals of land out of Sabik Khata No.596 in favour of Maheswara Mohapatra, Mayadhara Mohapatra and others and received consideration amount. It is his submission that neither the petition under Order VI Rule 17 CPC satisfies the requirement of proviso to Order VI Rule 17 CPC nor learned trial Court while allowing such application dealt with the same in its proper perspective. He further submits that amendment is not necessary for just adjudication of the suit. Since these aspects were not properly considered by learned trial Court, the impugned order is vulnerable and is liable to be set aside. 4. Mr. Pattnaik, learned counsel for the Plaintiff-Opposite Party No.1 submits that during cross-examination of Plaintiff (P.W.1), the Defendant No.1-Petitioner confronted the sale deed No.2383 dated 30th June, 1941 to the Plaintiff from which he came to know about the same. Thereafter, he searched for the same in the office of the Sub-Registrar and obtained the certified copy. In order to show the flow of title and for the purpose of clarification as to how the vendors of the Plaintiff acquired title over the suit land, the amendment was sought for. Learned trial Court considering the application and objection raised to it, allowed the application, which is necessary for proper adjudication of the suit. Hence, the impugned order being reasoned one should not be interfered with. In support of his case, he relied upon the case of P.A. Jayalakshmi –v- H. Saradha and others, reported in (2009) 14 SCC 525, wherein at Paragraph-13, the Hon’ble Supreme Court has held as under: Page 2 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Aug-2023 19:40:00 // 3 // “13. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them. In North Eastern Railway Administration, Gorakhpur v. Bhagwan Das, the law has laid down by this Court in the following terms: of or question granting "16. Insofar as the principles which govern disallowing the amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil3 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.” He further relied upon the case of North Eastern Railway Administration, Gorakhpur –v- Bhagwan Das (Dead) By Lrs., reported in (2008) 8 SCC 511, wherein at Paragraph-16, it is held as under: "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil3 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Page 3 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Aug-2023 19:40:00 // 4 // Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs.” He, therefore, submits that a petition for amendment can be entertained at any stage of the suit and it should be liberally considered, if the same is necessary for just adjudication of dispute between the parties. He, therefore, prays for dismissal of the CMP. 5. Taking note of the submissions made by learned counsel for the parties and on perusal of the record, it appears that the amendment application was filed after commencement of trial. In the petition, the Petitioner has taken a stand that in course of cross-examination of Plaintiff, the sale deed No.2383 dated 30th June, 1941 was confronted to the Plaintiff (P.W.1) from which he came to learn about the same and took step to file an application for amendment of the plaint. On perusal of the plaint along with the proposed amendment, it appears that the Plaintiff claims title by virtue of Registered Sale Deed executed by Maheswara Mohapatra, Mayadhara Mohapatra and others vide Registered Sale Deed No.2683 dated 30th March, 1978. Said Maheswara Mohapatra, Mayadhara Mohapatra and others acquired title from the recorded tenant by virtue of sale deed No.1983 dated 4th June, 1940 to an extent of Ac.2.51 decimals. The sale deed by virtue of which the Petitioner acquired title relates to Hal Plot Nos.3148 and 3073 corresponding to Sabik Plot No.2971 and 2908, which was purchased by his vendors vide R.S.D No.1983 dated 4th June, 1940. Thus, the claim of title over the suit property by the Plaintiff is not in Page 4 of 5 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 30-Aug-2023 19:40:00 // 5 // respect of land covered under the Registered Sale Deed No.2383 dated 30th June, 1941. As such, the amendment sought for is not necessary for proper adjudication of the suit. As the sale deed of 1941 is not relevant for adjudication of the suit, an amendment to introduce pleading in respect of such sale deed is also unnecessary. Moreover, the trial of the suit had already commenced in the instant suit at the time of filing of petition for amendment. 6. In that view of the matter, this Court is of the considered opinion that learned trial Court has committed any error in not considering the aforesaid aspects and allowing the application under Order VI Rule 17 CPC. Accordingly, the impugned order under Annexure-6 is set aside. 7. 8. The CMP is allowed to the aforesaid extent. Interim order dated 27th November, 2019 passed in I.A. No.1325 of 2019 stands vacated. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 5 of 5