The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jun-2024 17:42:18 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO.1306 OF 2019 Kartikeswar Sahoo …. Mr. Manoj Mishra, Senior Advocate being assisted by Mr. Sangram Senapati, Advocate Petitioner Sanjay Kumar Jena and others …. Opp. Parties Mr. Brahmananda Tripathy, Advocate -versus- CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 24.06.2024 Order No. 07. 1. This matter is taken up through hybrid mode. 2. Order dated 16th August, 2019 (Annexure-5) passed by learned Civil Judge, (Senior Division), Bhubaneswar in CS No.1701 of 2010 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Opposite Party Nos.1 to 4 for amendment of the plaint, has been allowed. 3. Mr. Mishra, learned Senior Advocate appearing for the Petitioner submits that the suit was filed by one Parvati Dei seeking declaration of the sale deed executed in favour of the Defendant No.X-Petitioner to be null and void along with other reliefs. The Defendant No.X -Petitioner appeared and filed his written statement. During pendency of the suit, said Parvati Dei died and the Plaintiffs-Opposite Party Nos.1 to 4 are substituted in her place. When the matter was posted for trial, the substituted Plaintiffs filed an application for amendment of the plaint (Annexure-3) stating that certain facts have been wrongly typed and some facts could not be mentioned properly in the plaint. It was also stated therein that some relevant facts were inadvertently omitted. Similarly, some persons required to be impleaded as Page 1 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jun-2024 17:42:18 parties to the suit. As the said facts were necessary for just decision of the suit, the amendment proposed in the schedule of the petition was sought to be incorporated in the plaint. The Defendant No.X-Petitioner filed his objection stating that the Plaintiffs did not state the necessity of the proposed amendment. Further, it is not stated in the petition as to whether the parties sought to be impleaded are necessary or proper parties to the suit. No explanation was given in the petition as to why such an application was filed at a belated stage. Learned trial Court, without considering the objection raised by the Defendant No.X- Petitioner, allowed the application relying upon certain case laws, applicability of which to the instant case was also not discussed in the impugned order. Thus, he prays for setting aside the impugned order. 4. Mr. Tripathy, learned counsel for the Plaintiffs-Opposite Party Nos.1 to 4 vehemently objects to the same. It is his submission that the amendments sought for are necessary for just adjudication of the suit. Since the trial of the suit has not yet commenced, there was no legal impediment for consideration of the application. The parties sought to be impleaded are proper parties to the suit. Further, the Defendant No.X-Petitioner in his written statement (Annexure-2) has categorically stated that All Odisha State Bank Officers Housing Co-operative Society Limited, Bhubaneswar represented by its Secretary should have been impleaded as party to the suit. Since the amendments are necessary for just adjudication of the suit and to avoid multiplicity of litigation, learned trial Court has committed no error in allowing such amendment. He also relied upon the case of Ganesh Prasad vrs. Rajeshwar Prasad, reported in (2023) SCC Page 2 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jun-2024 17:42:18 OnLine SC 256, wherein Hon’ble Supreme Court relying upon the ratio decided in Life Insurance Corporation of India vrs. Sanjeev Builders Private Limited and Another, reported in 2022 SCC OnLine SC 1128 in held that “(iii) The prayer for amendment is to be allowed (i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and (ii) 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 does 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).” 5. Since the amendment is necessary for just adjudication of the suit and does not divest the Defendant No.X-Petitioner of any right accrued to him, learned trial Court has committed no error in allowing the amendment. It is his submission that Defendant No.X-Petitioner is at liberty to file additional written statement to the consolidated plaint filed by the Petitioner. As such, he is no way prejudiced if the amendment is allowed. He, therefore, prays for dismissal of the same. 6. Taking note of the submission made by learned counsel for the parties and on perusal of record, more particularly, the petition under Annexure-3 filed under Order VI Rule 17 CPC, this Court finds that Plaintiffs-Opposite Parties have not stated as to how the presence of the parties sought to impleaded is necessary for just adjudication of the suit. It is also not stated in the petition that as to how the proposed amendments are necessary for just adjudication of the suit. Although, the written statement was filed on 4th March, 2011, but the application for amendment was filed Page 3 of 4 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: JUNIOR STENOGRAPHER Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Jun-2024 17:42:18 in the year 2019 without stating the reasons for delay in filing the petition for amendment. Although the objection raised by the Defendant No.X-Petitioner has been stated in the impugned order, but learned trial Court failed to discuss the same in the impugned order while arriving at the conclusion. Citing certain general grounds for allowing a petition for amendment, learned trial Court has passed the impugned order. It is not stated by Mr. Tripathy, learned Counsel for Plaintiffs-Opposite Parties as to how the guidelines in the case of Ganesh Prasad (supra) are applicable to the case at hand. 7. In that view of the matter, this Court is of the considered opinion that the impugned order is not sustainable and the same is accordingly set aside. 8. The matter is remitted to learned trial Court for fresh adjudication of the petition under Order VI Rule 17 CPC under Annexure-3 taking into consideration the objection raised by the Defendant No.X-Petitioner. 9. The CMP is accordingly disposed of. 10. Interim order dated 17th December, 2019 passed in IA No.1374 of 2019 stands vacated. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 4 of 4