The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1091 OF 2022 Haramani Sahoo and others Petitioners Mr. Bibekananda Bhuyan, Advocate …. -versus- Lalita Nayak and others Opp. Parties Mr. Bhabani Sankar Tripathy, Advocate (For Opposite Party Nos.1 and 9 to 11) …. CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 10.04.2023 8. 1. This matter is taken up through hybrid mode. 2. Additional affidavit filed by the Opposite Party Nos.1 and 9 to 11 is taken on record. Copy of the same has been served on Mr. Bhuyan, learned counsel for the Petitioners. 3. Order dated 21st September, 2022 (Annexure-7) passed by learned Senior Civil Judge, Second Court, Cuttack in C.S. No.86 of 2009 is under challenge in this CMP, whereby an application under Order VI Rule 17 C.P.C. filed by the Plaintiffs-Petitioners has been rejected. 4. Mr. Bhuyan, learned counsel for the Petitioners submits that C.S. No.86 of 2009 has been filed for declaration of right, title, interest over the suit land and for rectification of registered sale deed as well as for recovery of possession along with other consequential relief. After filing of the written statement by Defendant Nos.9 and 10 disclosing that Plot No.3371/4050 under Khata No.1135/660 has been recorded in the name of Page 1 of 6 // 2 // Defendant Nos.9 and 10, the Plaintiffs-Petitioners sought for amendment of the plaint stating that Plot No.3371/4050 to an extent of Ac.0.16 decimals corresponding to Sabik Plot No.2761 (Part) was a vacant land, which was exclusive property of Mayadhar Mohapatra, who acquired the same by virtue of mutual partition between the purchasers of the registered sale deed of 1940. Upon receipt of the consolidated plaint, the Defendant Nos.9 and 10 filed their additional written statement denying the said fact at para-9. Thereafter, the Plaintiffs- Petitioners filed another application under Order VI Rule 17 C.P.C. stating that although Hal plot numbers and khata numbers were given by the Defendants in their written statement, but mutation case number was not provided either in the written statement or in the additional written statement. On a thorough search made by the Plaintiffs-Petitioners at the office of Tahasildar, Niali, they came to know about the compromise decree passed in T.S. No.105 of 1998 in which the Plaintiffs- Petitioners were not parties and sought to incorporate the foundational pleadings in respect of T.S. No. 105 of 1998 with a prayer to declare the final decree passed by learned 2nd Civil Judge (Senior Division), Cuttack in T.S. No.105 of 1998 to be null and void. Learned trial Court observing that the Plaintiffs- Petitioners had knowledge of T.S. No.105 of 1998 and the amendment was sought for after a long lapse of time, refused to entertain the application under Order VI Rule 17 C.P.C. 4.1 Mr. Bhuyan, learned counsel for the Petitioners further submits that the amendment application itself would disclose Page 2 of 6 // 3 // that amendment sought for is bona fide and the Plaintiffs- Petitioners had no negligence in filing the application under Order VI Rule 17 C.P.C. to incorporate the subject matter of T.S. No.105 of 1998 by virtue of amendment. He refers to paragraphs-4 and 5 of the amendment application to justify his submission, which reads as under: case record in mutation “4. That in spite of repeated applications made by the old plaintiff before the defendant No.7, the Tahasildar, Niali for supply of certified copy of case mutation No.457/2001 with respect of aforesaid Ac.0.04 dec. of land in suit plot No.3371/4050 illegally mutated in favour of the defendant No.8, the defendant No.7 did not supply till date for which the plaintiff is unknown about the source of title of defendant No.8 over the aforesaid land an area of Ac.0.04 dec. in suit plot No.3371/4050 and the alleged process of mutation conducted by the Tahasil officials at the instance of the defendant No.8. 5. That while searching about the status and ownership of hal plot No.3372 under Hal Khata No.198 which was wrongly mentioned in the R.S.D. dated 20.07.1978 executed in favour of the plaintiff, he recently came to know in the office of Tahasildar, Niali about one Civil Suit bearing T.S. No.105 of 1998 and after obtaining the certified copies in the said suit, the plaintiff came to know that the defendant No.8 and some other persons collusively filed that suit and decreed the same in terms of compromise and accordingly an area Ac.0.04 dec. including the suit land an area Ac.0.02 dec. in suit plot No.3371/4050 allotted to the defendant No.8 illegally.” Page 3 of 6 // 4 // He, therefore, submits that since Defendant Nos.9 and 10 had never disclosed about T.S. No.105 of 1998 either in the written statement or in the additional written statement, there was no occasion on the part of the Plaintiffs-Petitioners to know about the same earlier. It is only when they searched for mutation case number in the office of Tahasildar, Niali, they came to know about the same and filed the petition for amendment. This aspect was not taken into consideration by learned trial Court while adjudicating the petition under Order VI Rule 17 C.P.C. As such, the impugned order is not sustainable and is liable to be set aside. 5. Mr. Tripathy, learned counsel for Opposite Party Nos.1 and 9 to 11 submits that the Petitioners had knowledge about the details of land in mutation plot numbers and khata numbers at least since 2017, when the Defendants took a plea in the written statement with regard to the aforesaid plots. No effort has been made thereafter by the Plaintiffs-Petitioners to take a plea with regard to the validity of the compromise decree in T.S. No.105 of 1998, when the first application for amendment of the plaint after filing of the written statement was filed. By filing an affidavit, he further submits that certified copy of the case record in T.S. No.105 of 1998 was made available to the Plaintiffs-Petitioners on 26th March, 2020. The present application under Order VI Rule 17 C.P.C. is the 5th attempt of Plaintiffs-Petitioners to amend the plaint. Thus, learned trial Court has committed no error in holding that the Plaintiffs- Petitioners had knowledge about T.S. No.105 of 1998 and they Page 4 of 6 // 5 // did not take any step to challenge the same earlier. After disposal CMP No. 59 of 2020 on 13th October, 2022 directing learned trial Court to dispose of the suit at an early date, an attempt is made by the Plaintiffs-Petitioners to linger the proceeding overreaching the direction of this Court. Hence, amendment sought for is not at all bona fide and has rightly been rejected by learned trial Court. 6. Considering the rival contentions of learned counsel for the parties, this Court finds that in the written statement filed by the Defendant Nos.9 and 10, they have disclosed about the Mutation Plot No.3371/4050 corresponding to Mutation Khata No.1135/660. Said written statement was filed in the year, 2017. After filing of the written statement, the Petitioners had prayed for amendment of the plaint. Thus, the claim in respect of Plot No.3371/4050 corresponding to Mutation Khata No.1135/660 was within the knowledge of the Plaintiffs- Petitioners at lease since 2017. On perusal of the Petition under Order VI Rule 17 C.P.C., it does not disclose what step the Petitioners had taken thereafter to search for the records and as to why the plea sought to be incorporated by way of amendment could not be made in the earlier applications under Order VI Rule 17 C.P.C.. It is only stated in paragraphs-4 and 5 of the amendment petition that in spite of repeated applications made by the Plaintiffs before the Tahasildar, Niali for supply of certified copy of the mutation case records in Mutation Case No.457 2001, the same was not supplied to them. While searching for the status and ownership of Hal Plot No.3372 Page 5 of 6 // 6 // under Khata No.198, which was allegedly mentioned in the registered sale deed dated 28th July, 1978 executed in favour of the Plaintiffs, they came to know about the compromise decree passed in T.S. No.105 of 1998. No details of such search and knowledge about T.S. No.105 of 1998 have been provided in the petition for amendment. There is no explanation in the petition under Order VI Rule 17 C.P.C. as to why the Plaintiffs- Petitioners could not take such a plea in the earlier amendment applications. 7. In view of the above, although learned trial Court has not expressed in too many words, but the observation made by learned trial Court that the Petitioners had knowledge about T.S. No.105 of 1998 much before filing of the petition under Order VI Rule 17 C.P.C. cannot be said to be erroneous. 8. Since learned trial Court considering the materials on record has passed the impugned order and it is not clear as to when the Plaintiffs-Petitioners came to know about the existence of the compromise decree in T.S. No.105 of 1998, I am not inclined to interfere with the impugned order. As such, the CMP being devoid of any merit stands dismissed. 9. The interim order dated 7th December, 2022 passed in I.A. No.1142 of 2022 stands vacated. Urgent certified copy of this order be granted on proper application. (K.R. Mohapatra) Judge Page 6 of 6 bks