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: 18-Sep-2023 18:28:35 IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No. 958 OF 2023 Akshaya Kumar Rout Petitioner Mr. Sidhartha Mishra, Advocate …. Pitambar Rout and another …. Opp. Parties -versus- CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 18.09.2023 01. 1. This matter is taken up through hybrid mode. 2. Order dated 10th April, 2023 (Annexure-4) passed by learned Additional Senior Civil Judge, Jajpur in C.S. No.765 of 2015 (F.D.) is under challenge in this CMP, whereby an application filed by the Plaintiff-Petitioner under Order VI Rule 17 CPC to add other properties for partition, has been rejected. 3. Mr. Mishra, learned counsel for the Petitioner submits that the properties more fully described in the schedule of the amendment application at Annexure-2 could not be incorporated in the schedule of the plaint for partition, as the land records were with the Defendants. Thus, during pendency of the final decree proceeding, an application under Order VI Rule 17 CPC was filed for amendment of the schedule of the plaint and to pass another preliminary decree. The said application was rejected on the ground that the application has been made at a belated stage and the Court cannot go against the preliminary decree. It was also held that the amendment sought for is not necessary for Page 1 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2023 18:28:35 // 2 // proceeding with the final decree proceeding. Hence, this CMP has been filed. 4. Mr. Mishra, learned counsel for the Petitioner relied upon the case of Sk. Aisnullah @ Sk. Ahesnullah –v- Hasrtun Khatun and others, reported in 2009 (I) CLR 62, wherein this Court has held as under: “……..Since this is a partition suit and by way of amendment the plaintiffs wanted to include some properties in the schedule of the plaint and the said the nature and amendment would not change character of the suit property and for the interest of justice and to avoid multiplicity of proceedings, the the amendment should have been allowed and defendants could be compensated by way of cost for the delay in filing the amendment application. In support of his contention he cited the decision of the Supreme Court in the case of C.M.Vereekutty v. C.M.Mathukutty reported in AIR 1981 SC 1533. He also cited the decision of this Court in the case of Bhagabati Sahu and others v. Trilochan Sahu and after him Lakhpati Sahu and others reported in 1989 (II) OLR 174 wherein it has been held that the suit is deemed to be pending till the final decree is passed. The Court may take into consideration all subsequent events from time to time and make enquiries and pass preliminary decrees as those are necessary in the interest of justice and for just disposal of disputes between the parties. Properties liable for partition can be added at any stage. In the present case, since the final decree proceeding is continuing, the suit is deemed to be continuing. Therefore, properties liable the case of for partition can be added. C.M.Vereekutty (supra), the Supreme Court held that since some of the properties had not been correctly and fully described in the original plaint schedule and due to ignorance some properties had been omitted, the High Court rightly allowed the application for amendment of the plaint.” In 5. He, therefore, submits that since the final decree proceeding is the continuation of the suit and the suit has not yet Page 2 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2023 18:28:35 // 3 // been disposed of, amendment of the plaint at the stage of final decree proceeding is maintainable. The Plaintiff has also shown that in spite of his due diligence, he could not have brought the amendment sought for before commencement of trial of the suit. 6. It is his submission that in order to draw another preliminary decree, the plaint has to be amended. Learned trial Court while passing the impugned order, did not take into consideration the aforesaid aspects. Hence, he prays for setting aside the impugned order under Annexure-4 and to allow the Petitioner for amendment. 7. Upon hearing learned counsel for the Petitioner and on perusal of the record, it appears that at Paragraph-5 of the amendment application, the Petitioner has explained that as the land records were in the custody of the Defendants, he was not aware about the khata numbers and plot numbers of the schedule land for which the property, more fully, described in the schedule of the amendment petition could not be incorporated earlier. It is not clear from the petition for amendment, as to when, the plot numbers and khata numbers came to the knowledge of the Plaintiff-Petitioner and the manner of such knowledge. There is no material on record to show that the Plaintiff could not have brought the amendment sought for on record before commencement of trial of the suit. By making a bald statement that the land records were with the Defendants, so the Plaintiff could not know about the plots sought to be incorporated, is not sufficient to explain due diligence. The Plaintiff has never sought for discovery or put any interrogatory to the Defendants to know the plot numbers and khata numbers Page 3 of 4 Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 18-Sep-2023 18:28:35 // 4 // of the property sought to be incorporated. The case law cited by Mr. Mishra, learned counsel for the Petitioner has no application to the case at hand, as this Court relied upon the decision of the Hon’ble Supreme Court, wherein subsequent events were sought to be incorporated by way of amendment in the final decree proceeding. In the instant case, the amendments sought for are not subsequent events. 8. In that view of the matter, I find no infirmity in the impugned order under Annexure-4. 9. Accordingly, the CMP being devoid of any merit stands dismissed. Urgent certified copy of this order be granted on proper application. ms (K.R. Mohapatra) Judge Page 4 of 4