The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1592 of 2025 Ashok Kumar Mohanta and others …. Petitioners -Versus- Madhu @ Madhusudhan Singh and others Represented by Adv.– Mr. S.K. Patnaik, Advocate …. Opposite Parties CORAM: HON’ BLE THE CHIEF JUSTICE Order No.
Decision
ORDER 14.11.2025 01. 1. The application for amendment filed by the petitioners stood dismissed by the trial court on the ground of lack of plausible explanation offered in the said application for amendment as mandated under proviso to Order 6 Rule 17 of the Code of Civil Procedure, on due diligence. 2. The plaintiff-opposite party filed a suit for declaration of right, title and interest in respect of a subject property, recovery of possession and permanent injunction. The defendants entered appearance after receiving the summons and are contesting the said suit by filing the written statement. After the pleadings having completed and the other procedural aspects having exhausted, the Page 1 of 5 suit was posted for recording the evidence of the parties. The order would reveal that the witnesses on the side of the plaintiffs had deposed and discharged after the cross-examination. The third witness of the defendants was being examined and is facing the cross-examination. At this juncture, an application for amendment of the written statement is filed by the petitioners seeking to incorporate that the plaintiff is no way connected with the admitted owner. 3. It is averred in the said application that the statement made in the plaint that the plaintiff is a descendant of the admitted owner has already been denied, subsequently, on inquiry being made, it is found that the plaintiff is no way related to the admitted owner. 4. After the amendment having brought in Code of Civil Procedure in the year 2002, a proviso is inserted to Order 6 Rule 17 of the Code of Civil Procedure which postulates that if an amendment is sought after the commencement of trial, the party applying for an amendment must satisfy that despite due diligence, the proposed amendment could not be brought in the pleadings. Once a proviso has abridged and/or controlled the enabling provisions, a strict compliance should be ensured otherwise the purpose for incorporation of proviso to an enabling provision would be rendered otiose and/or redundant. Page 2 of 5 5. It is a cardinal principle of statutory interpretation that the proviso controls the applicability of the enabling provisions and is regarded as an exception thereto. The said proviso was inserted to eradicate unsubstantiated and a frivolous application for amendment by the unscrupulous litigant with an intent to procrastinate the litigation and avoidance of bringing such suit to its logical end. Because of such attempt having taken by the litigant, which delays the disposal of the suit, the proviso was inserted and, therefore, it is ardent duty of the Court to give effect to such proviso inserted by way of a subsequent amendment. 6. Admittedly, the application for amendment is taken out after the commencement of the trial, more particularly, when the witnesses on behalf of plaintiffs have already been examined and discharged after the cross-examination. A judgment of the apex Court rendered in Life Insurance Corporation of India v. Sanjeev Builders Private Limited and another, (2022) 16 SCC 1 is relied upon by the learned Advocate appearing for the petitioner in support of his contention that the Court must allow the amendment in order to determine the real question in controversy provided it does not cause prejudice or injustice to the other side. It is further held that the intent behind the incorporation of the provision relating to the amendment is to avoid the multiplicity of the proceedings and the rights of the parties or the Page 3 of 5 issues raised in the suit are decided in effective and complete manner. 7. There is no quarrel to the proposition of law laid down in the said report for the simple reason that the enabling provision of Order 6 Rule 17 of the Code postulates that a party may be permitted to amend its pleading at any stage of the proceedings provided the same is necessary for the purpose of determining the real questions in controversy between the parties. The stage of the suit or a proceeding in legal parlance commences from the date of the presentation of the plaint till the judgment is delivered. The moment the proviso restricts that the amendment should not be readily allowed, if taken out after the commencement of trial, it is imperative on the part of the party applying for amendment to satisfy by giving a plausible reason as to why such application for amendment could not be taken out before the commencement of trial. In the said report, the suit in which an application for amendment was filed was instituted prior to the amendment having brought in Order 6 Rule 17 of the Code of Civil Procedure. Section 16 (2) (b) of the Code of Civil Procedure (Amendment) Act, 2002 which clearly excludes the operation of the amendment having brought in Order 6 Rule 17 of the Code in relation to the pleadings filed prior to the said amendment. Obviously, the suit which was filed prior to the amendment Act has Page 4 of 5 to be guided by the enabling provision as the proviso does not find place in the said provision. 8. This Court does not agree with the submission as this Court finds that the judgment rendered in the above report has no manner of application in the present case. Admittedly, the present suit is filed after the CPC amended Act of 2002 and, therefore, the proviso is attracted. 9. This Court thus does not find any infirmity and/or illegality in the order of the trial court in dismissing the said application. The instant application sans merit, the same is hereby dismissed. (Harish Tandon) Chief Justice S.K. Guin/PA Signature Not Verified Digitally Signed Signed by: SUBASH KUMAR GUIN Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Nov-2025 12:29:19 Page 5 of 5