The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 1371 OF 2023 …. Naba Kumar Mohanty Petitioner Mr. Satyabrata Udgata, Advocate -versus- Sumita Mohanty and others …. Opp. Parties Mr. Santosh Kumar Samantaray, Advocate CORAM: JUSTICE K.R. MOHAPATRA Order No. 2. 1. 2.
Decision
ORDER 27.03.2024 This matter is taken up through hybrid mode. Order dated 11th September, 2023 (Anenxure-2) passed by learned Senior Civil Judge, Sambalpur in C.S. No.48 of 2017 is under challenge in this CMP, whereby an application filed by Defendant No.1-Petitioner under Order VI Rule 17 C.P.C. has been rejected. 3. Mr. Udgata, learned counsel for the Petitioner submits that the suit has been filed for partition. However, partition of the suit property had taken place earlier. A memorandum of partition to that effect was also executed on 7th July, 2003 between Defendant Nos.1 and 2 with legal heirs of late Purna Chandra Mohanty and Rambhabati Devi acknowledging such partition. In the said memorandum of partition, the unmarried daughters, namely, Sumita Mohanty (Plaintiff) and Neeta Mohanty (Defendant No.3) had acknowledged that they would not claim any share other than the property mentioned in Schedule-A of the said memorandum acknowledging partition. Inadvertently such averment could not be made in the written statement, although there was a reference to the memorandum of Page 1 of 5 // 2 // acknowledging partition dated 7th July, 2003. When the Defendant No.1 was preparing for trial, the same came to his knowledge. Accordingly, the Defendant No.1 sought for an adjournment on the date the case was posted for hearing to enable him to file the petition for amendment. The adjournment was sought for on the ground that the Defendant No.1 was travelling from Cuttack and could not reach the Court by the time the suit was taken up for hearing. Learned trial Court rejecting such application recorded the evidence-in-chief of P.W.1. The matter was then posted to 11th September, 2023 for cross-examination of P.W.1 on which date the Defendant No.1 filed a petition for amendment without wasting any time. But the said application was rejected on the same day holding that trial of the suit had already commenced and the Plaintiff did not state the reasons as to why the petition for amendment could not be filed prior to commencement of the trial. It is his submission that amendment sought for is necessary for just adjudication of the suit as the acknowledgement of the Plaintiff and Defendant No.3 in the memorandum dated 7th July, 2003 was only to be incorporated in the written statement for just determination of share of the parties. Hence, he prays for setting aside the impugned order and to allow the petition for amendment. 4. Mr. Samantaray, learned counsel for the contesting Opposite Parties submits that in fact, the suit was posted to 4th September, 2023 for evidence on behalf of P.W.1. On that date, the Defendant No.1 filed an application for adjournment of the suit on the ground that the Defendant No.1 is travelling and on his arrival, an application for amendment of the written statement would be filed. Learned trial Court rejected the said Page 2 of 5 // 3 // application and proceeded to record the evidence-in-chief of P.W.1. However, after commencement of 4.1 the application for amendment was filed on 11th September, 2023, trial, the which has rightly been rejected as it did not satisfy the requirement of proviso to Order VI Rule 17 C.P.C. Hence, he prays for dismissal of the CMP. 5. Taking into consideration the submissions made by learned counsel for the parties and on perusal of the record, it is apparent that before commencement of the trial, the Defendant No.1-Petitioner had made an attempt to file an application for amendment of the written statement. Due to non-availability of the Defendant No.1, the same could not be filed on the date the suit was posted for recording of the evidence of P.W.1, i.e. on 4th September, 2023. Accordingly, an application for adjournment was filed to present an application for amendment of the written statement. Said application was rejected and the evidence-in- chief of P.W.1 was recorded. On the very next day, i.e. on 11th September, 2023, when the suit was posted for cross- examination of P.W.1 by the Defendant No.1, an application under Order VI Rule 17 C.P.C. was filed. Said application was rejected on the ground that the petition was filed during continuance of the trial of the suit and there is no explanation that in spite of due diligence, the Petitioner could not have raised the matter before commencement of the trial. 6. On perusal of the petition for amendment, it is apparent that the proposed amendments are only explanatory in nature. By virtue of the amendment, the Defendant No.1 wants to explain the acknowledgement of the Plaintiff-Opposite Party Page 3 of 5 // 4 // No.1 and Defendant No.3 in the memorandum dated 7th July, 2003. The same is, no doubt, necessary for just adjudication of the trial as the same would be vital piece of material for determination of share of the parties, if partition takes place. Moreover, there is a reference to the memorandum dated 7th July, 2003 in the written statement filed by Defendant No.1. 7. Facts and circumstances of the case indicate that the Defendant No.1-Petitioner had made an attempt to file the petition for amendment before commencement of the trial, but due to non-availability of Defendant No.1, the same could not be filed on 4th September, 2023, i.e. on the date the evidence of P.W.1 was recorded. An application for adjournment was, in fact, filed by the Defendant No.1 to grant some time to file an application for amendment. Said application was rejected and learned trial Court proceeded to record the evidence-in-chief of P.W.1. 8. In view of the above, it cannot be said that the Defendant No.1 had not explained due diligence as required under proviso to Order VI Rule 17 C.P.C. Since the amendment does not change the nature and character of the suit and it is only explanatory in nature, it should have been allowed. 9. Accordingly, the impugned order under Annexure-5 is set aside and the amendment to the written statement filed by Defendant No.1 is allowed. Consolidated written statement shall be filed within a period of two weeks hence serving copy thereof on learned counsel for the Plaintiff-Opposite Party No.1. It is further observed that either of the parties, if so advised, may file appropriate application for re-examination/further cross- Page 4 of 5 // 5 // examination of P.W.1 by recalling the witnesses already examined. 10. It is made clear that since the suit is of the year, 2017, learned trial Court should make its best endeavour to see that it is disposed of at an early date. Parties to the suit are directed to cooperate with learned trial Court for early disposal of the suit. If any of the parties does not cooperate with learned trial Court for early disposal of the suit, coercive measure in accordance with law may be taken against him. Urgent certified copy of this order be granted on proper application. bks (K.R. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 02-Apr-2024 15:52:49 Page 5 of 5