The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.16 of 2025 Kartika Sethi & others Petitioners Ms. Baijayanti Mohanty, Advocate …. -Versus- Kanchan Panda & others …. Opposite Parties None
Legal Reasoning
CORAM: MR. JUSTICE R.K. PATTANAIK
Decision
ORDER 19.02.2025 Order No. 01. 1. 2. Heard Ms. Mohanty, learned counsel for the petitioners. No notices are issued to the opposite parties, as the matter is disposed of at the stage of admission. 3. Instant petition is filed by the petitioners challenging the correctness of the impugned order dated 27th September, 2024 passed in connection with C.S. No.35/38 of 2000-2022 under Annexure-5 by learned Civil Judge, Senior Division, Sonepur on the grounds stated therein. 4. Perused the pleadings as at Annexures-1 and 2 and the amendment application dated 9th May, 2024 i.e. Annexure-3. 5. Ms. Mohanty, learned counsel for the petitioners would submit that the amendment was sought for with an application i.e. Annexure-3 and it was declined on the premise that such amendment is likely to be change the nature and character of the suit, which is not correct. It is further submitted that the amendment stands declined and the suit is at the stage of argument though pending since last 23 years. The submission of Ms. Mohanty, Page 1 of 4 learned counsel for the petitioners is that such amendment is necessary for just decision in the suit and that, the proposed fact was not well within the knowledge of the petitioners, hence, it was supplied towards the end, at the stage when the suit is ready for argument. The contention is that the learned court below should have been liberal to allow the amendment of W.S., which is necessary for proper and effective adjudication of the suit and while advancing such an argument, a decision of Apex Court in Usha Balashaheb Swami & others Vrs. Kiran Appaso Swami & others disposed of on 18th April, 2007 in Civil Appeal No.2019 of 2007 arising out of SLP(c) No.3366 of 2006 is referred to. The submission is that in the interest of justice and considering the nature of relief sought for seeking declaration of right, title and interest in respect of the suit schedule property, the amendment of the W.S. ought to have been allowed by learned Court below, hence, therefore, the impugned order dated 27th September, 2024 as at Annexure-5 is liable to be interfered with. 6. Gone through the proposed amendment appended to Annexure-3. In fact, the petitioners claimed that the issue at hand has been directly and substantially in issue in a previously instituted the suit (No.136/1943-44) between the ancestors of the parties and it was not within the knowledge earlier, hence, the amendment is sought for. The rest of the amendment is morefully described therein and the same appears to be formal in nature. The submission is that unless the proposed amendment is allowed, the petitioners would be prejudiced. 7. The suit is pending at the stage of argument and ready for disposal. As far as the law on the point is concerned, amendment of is permissible at any stage but it must be shown that the party applying for such amendment could not submit the same despite Page 2 of 4 due diligence. According to Ms. Mohanty, learned counsel for the petitioners, the disposal of the earlier suit of the year 1943-44 could not be brought to the notice of the Court below in spite of due diligence and the same is necessary for disposal of the suit. In Usha Balashaheb Swami (supra), it has been held that amendment of the pleadings cannot be allowed so as to alter material, substitute cause of action or nature of the claim. It has been further held therein that the Courts should be more liberal in allowing amendments taking judicial notice of the fact that amendments are allowed more often for the plaintiff than defendants. Under the circumstances narrated therein and the grounds advanced, the Apex Court in the aforesaid case, however, disallowed the amendment of the W.S. The principle vis-(cid:224)-vis amendment is, however, has been highlighted upon by the Apex Court in the case (supra). The Court is alive to the settled legal position regarding the amendment of the pleading. It is restated that there is no hard and fast rule to allow amendment of a pleading be the plaint or W.S. In the instant case, as it appears the pleading is sought to be introduced to challenge the suit on the ground that the issue involved therein was directly and substantially in issue in the previously instituted suit of the year, 1943-44. Such amendment could adversely affect the outcome of the suit, if in case, the proposed amendment is allowed. Recording the submission of Ms. Mohanty, learned counsel for the petitioners and having regard to the ratio decided in the Apex Court in Usha Balashaheb Swami (supra) reiterated in catena of decisions and the proviso to Order 6 Rule 17 CPC regarding the parties to be diligent, while seeking amendment of pleading, the Court is of the view that in the fitness of things, the request for such an amendment of W.S., at the instance of the petitioners, should be allowed, however, with costs. 8. Accordingly, it is ordered. Page 3 of 4 9. In the result, the petition stands disposed of allowing the petitioners to amend the W.S. as per Annexure-3 and to file a consolidated one immediately, whereafter, learned Senior Civil Judge, Senior Division, Sonepur shall proceed to dispose of the suit in C.S. No.35/38 of 2000-2022 as per and in accordance with law, if necessary, after recalling only the witnesses material to the case and ensure it at the earliest preferably within a period of four weeks from the date of receipt of a copy of this order. As a necessary corollary, the impugned order dated 27th September, 2024 as at Annexure-5 is hereby set aside. The Court further directs that such amendment to the W.S. shall be subject to cost of Rs.3000/- payable to the contesting opposite parties. 10. Urgent certified copy of this order be issued as per rules. (R.K. Pattanaik) Judge Balaram Signature Not Verified Digitally Signed Signed by: BALARAM BEHERA Reason: Authentication Location: OHC, CTC Date: 20-Feb-2025 18:30:18 Page 4 of 4