Bapi @ Rupak Kumar Panda vs Mrugaraj Panda & Others

Dr. A.K.Rath, J

This petition challenges the order dated 8.7.2016 passed by the learned Civil Judge (Senior Division), Bhadrak in O.S. No.461 of 1999-I. By the said

order, the trial court rejected the application of the plaintiff under Order 6 Rule 17 CPC to amend the plaint and implead two persons, namely,

Surendra Prasad Mohanty and Hemalata Mohanty as defendants.

Plaintiff-petitioner instituted the suit for declaration that he is the adopted son of Bhagaban Panda and Sabitri Dibya, declaration of right, title and

interest, confirmation of possession, for a declaration that the registered gift deeds dated 18.9.1976, 6.1.1978, 5.11.1980 and 21.7.1979 are illegal and

permanent injunction.

Defendant no.1-opposite party no.1 entered appearance and filed a written statement denying the assertions made in the plaint. While the matter

stood thus, the plaintiff filed an application under Order 6 Rule 17 CPC to amend the plaint. In the proposed amendment, the plaintiff sought to

incorporate certain facts and implead two persons; Surendra Prasad Mohanty and Hemalata Mohanty as defendants. The petition was rejected. He

filed CMP No.500 of 2016 before this Court. This Court did not incline to entertain the application, but observed that it is open to the plaintiff to amend

the plaint. The petition was disposed of on 27.4.2016. Thereafter, the plaintiff filed another application under Order 6 Rule 17 CPC to amend the plaint

and implead Surendra Prasad Mohanty and Hemalata Mohanty as defendants. Defendant no.1 opposed the petition on the ground that the intervenors

are neither necessary nor proper parties to the suit. The trial court rejected the petition holding, inter alia, that the third party petitioners, namely,

Surendra Prasad Mohanty and Hemalata Mohanty had earlier filed a petition under Order 1 Rule 10 CPC for impleadment. The petition was rejected

on 19.1.2016. Subsequently the plaintiff filed an application under Order 6 Rule 17 CPC to implead them as defendants. By common order dated

20.2.2016, the petition was rejected. Thereafter, they filed CMP No.500 of 2016. This Court granted liberty to the plaintiff to file an application for

amendment and directed the trial court to consider the amendment application filed by the plaintiff on merit. Previously similar kind of petitions filed by

the third party intervenors and plaintiff were rejected. There is no changed circumstance in the case to take a different view.

Heard Mr. Nilakantha Jujharsingh, learned counsel for the petitioner and Ms. Priyadarshini Das on behalf of Ms. Mira Ghosh, learned counsel for

the opposite party no.1.

Mr. Jujharsingh, learned counsel for the petitioner submitted that the rejection of earlier petition under Order 6 Rule 17 CPC will not operate as res

judicata. The intervenors are necessary parties to the suit. The plaintiff intended to incorporate certain facts, which will not change the nature and

character of the suit. He placed reliance on the decision of the apex Court in the case of Revajeetu Builders & Developers v. Narayanaswamy &

sons and others, 2009 (II) OLR (SC) 815.

Per contra, Ms. Das, learned counsel for the opposite party no.1 submitted that once the application under Order 6 Rule 17 CPC to implead

Surendra Prasad Mohanty and Hemalata Mohanty as defendants is rejected, it would not be open to the plaintiff to seek the reliefs on the self-same

ground by taking recourse to another application. There is no changed circumstance. To buttress submission, she placed reliance on the decision of

this Court in the case of Kanhu Gauda v. D. Kodandi Dora and others, 60 (1985) CLT 453.

In Kanhu Gauda (supra), this Court held that where an application is made under Order 1, Rule 10, sub-rule (2) of the Code for impletion of a party

either on the ground that he is a necessary party or proper party and the application is rejected and reaches its finality, it would not be open to a party

at a later stage of that proceeding to seek the relief on the self-same ground by taking recourse to Order 6, Rule 17. He may do on the basis of

subsequent events, changed situation, fresh facts, etc. The rule is founded not on the principles of res judicata but on the principles of propriety. Such

decisions are not the final decisions in the suit but are interlocutory in nature.

Reverting to the facts of the case at hand and keeping in view the enunciation of law laid down in the case Kanhu Gauda, this Court finds that

earlier the plaintiff had filed an application under Order 6 Rule 17 CPC to implead Surendra Prasad Mohanty and Hemalata Mohanty as defendants.

The intervenors had also filed an application under Order 1 Rule 10 CPC for impleadment as parties. Both the petitions were rejected by the trial

court. The matter had attained finality. Again another application under Order 6 Rule 17 CPC had been filed on the self-same ground. There is no

changed situation or change of events. As has been observed by this Court in Kanhu Gauda, the Rule is founded not on the principles of res judicata

but on the principles of propriety.

In Revajeetu Builders (supra), the apex Court succinctly stated the principles to take into account while dealing with the applications for

amendment. The apex Court held thus :

“67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting

the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.â€​

There is no quarrel over the proposition of law. The instant case is distinguishable on facts. The ratio in Kanhu Gauda proprio vigore applies to the

facts of the case.

The impugned order of the trial court cannot be said to be perfunctory or flawed warranting interference of this Court under Article 227 of the

Constitution. Accordingly, the petition is dismissed. There shall be no order as to costs.

………………………..