Bhagyalipi Patri And Another vs Tulasi Patri And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 26th April, 2023 (Annexure-4) passed by learned Civil Judge (Senior Division), Kendrapara in Civil Suit No.406 of 2018 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Petitioners under Order VI Rule 17 CPC, has been rejected.

Mr. Mishra, learned Senior Advocate appearing for the Petitioners submits that the suit has been filed for partition and permanent injunction. After death of the original Plaintiff, namely, Jayant Patri, his widow and son being the Petitioners herein, are impleaded as Plaintiffs. Before commencement of the trial, they filed an application under Order VI Rule 17 CPC to include Khata Nos.555 and 492 in the schedule of the plaint. They also prayed for impleading Sanjukta Patri, Gourava Patri, and Anni Patri as Defendant No.5 to 7 as well as Prakash Parida, Ashok Swain and Debendra Rout as parties to the suit.

It is submitted that Prakash Parida, Ashok Swain and Debendra Rout are purchasers of property in Plot Nos.762/1433, 372 and 402 of Khata No.250/88 of Lot No.01. They had purchased the property prior to filing of the suit. When the said facts came to the knowledge of the Plaintiffs, they filed the petition for amendment. Learned trial Court, holding that the properties under Khata Nos.555 and 492 have already been partitioned in CS No.249 of 2010 and the Plaintiffs, by filing a petition have excluded the purchased property as aforesaid from the schedule of the plaint, rejected the petition. Hence, this CMP has been filed.

It is submitted that inclusion of the aforesaid properties as well as parties will assist the Court to adjudicate the suit effectively and put an end to the litigation between the parties. This aspect was not taken into consideration, while adjudicating the petition.

Mr. Patra, learned counsel for Opposite Party Nos. 1 to 3 submits that when the properties under Khata Nos. 555 and 492 have already been partitioned in a previous suit, i.e., CS No.249 of 2010, the same could not have been incorporated in the schedule of the plaint of the present suit for partition. Further, the properties purchased by the above named persons have already been kept out of adjudication at the instance of the Petitioners by filing a petition for which they have reduced the total area of the aforesaid plots in the schedule of the plaint. He, therefore, submits that learned trial Court has committed no error in dismissing the petition under Order VI Rule 17 CPC.

In course of hearing, Mr. Mishra, learned Senior Advocate fairly conceded that Khata Nos. 555 and 492 have already been partitioned in CS No.249 of 2010. Hence, those could not have been incorporated in the present suit seeking for partition of the same.

Further, on comparison of the original plaint and amended plaint, it appears that the total area of the plots have been reduced to the extent purchased by the proposed Defendants.

In view of such submission, nothing remains to be adjudicated in the CMP as the Plaintiffs have consciously did not include Khata Nos. 555 and 492 to the schedule of the plaint for partition, as the said properties were partitioned in CS No.249 of 2010. Further, on the prayer of the Plaintiffs-Petitioners, the area of properties purchased by the above named persons has been reduced in the schedule of the plaint thereby excluding the purchased land from partition. Thus, further petition for amendment to the aforesaid extent could not have been entertained, as rightly held by learned trial Court.

Hence, this CMP, being devoid of any merit, stands dismissed.

Urgent certified copy of this order be granted on proper application.

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