Diptiman Dey And Others vs Banshidhar Mohapatra And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 5th September, 2023 (Annexure-5) passed by learned Senior Civil Judge, Jaleswar in CS No.344 of 2016 is under challenge in this CMP, whereby an application filed by the Plaintiffs-Petitioners under Order VI Rule 17 CPC for amendment of the plaint, has been rejected.

Mr. Mishra, learned Senior Advocate appearing for the Petitioners submits that the suit has been filed for declaration of right, title and interest over the suit schedule property and for permanent injunction. The suit was dismissed against which the Plaintiffs-Petitioners preferred RFA No.184 of 2013. Vide judgment dated 5th November, 2016, the appeal was allowed and learned appellate Court directed learned trial Court to decide the suit afresh.

Assailing the same, the Defendants preferred SAO No.17 of 2017 before this Court, which was dismissed. After remand, both the parties to the suit filed memo stating that they will not adduce further evidence. Accordingly, the matter was posted for argument. In course of hearing, learned counsel for the Plaintiffs could detect that in Paragraph 3 of the plaint, it was inadvertently omitted to state that the sale in question was oral sale for consideration of less than Rs.100/-. The amendment sought for was intended to correct an inadvertent omission by the Plaintiffs. The same is formal in nature and will not prejudice the Defendants in any manner. The proposed amendment is explanatory in nature. Hence, there was no difficulty in allowing such application as the Plaintiffs undertake not to adduce further evidence in the suit.

In support of his submission, Mr. Mishra, learned Senior Advocate relied upon the case of Life Insurance Corporation of India -v- Sanjeev Builders Private Limited and another, reported in 2022 SCC online 1128, Revajeetu Buliders and Developers -v-Narayanaswamy and Sons and others, reported in 2009(II), OLR SC 815 and SK. Sanawar -v- Najma Bibi and others, reported in 2023(I) OLR 797.

It is his submission that since the amendment sought for is only clarificatory and explanatory in nature and was sought for to avoid ambiguity while adjudicating the suit, the same should have been allowed. But, the application was rejected observing the absence of due diligence of the Petitioners. Hence, this CMP has been filed.

Considering the submission of Mr. Mishra, learned Senior Advocate and on perusal of the record, it appears that the suit was a contested one and was dismissed. However, learned appellate Court set aside the decree and directed learned trial Court to adjudicate the suit afresh. Learned appellate Court admittedly had not given any liberty/leave to the Plaintiffs-Petitioners to amend the plaint. After remand, both the parties filed memo not to adduce further evidence in the matter.

Admittedly, the amendment sought for was during course of argument of the suit. Since evidence of the parties have already been closed, the Plaintiffs in order to get the relief sought for in the petition should have explained that in spite of due diligence, they could not have sought for proposed amendment before commencement of the trial. In the instance case, on the basis of the pleadings, evidence and materials available on record, the suit was once disposed of. Thus the application for amendment was filed after evidence of the parties was closed and the suit was posted for argument.

It appears that the Plaintiffs have not explained in their petition under Order VI Rule 17 CPC (Annexure-3) that in spite of due diligence, they could not have sought for the amendment before commencement of the trial.

Further, the Defendants, in their written statement, have categorically stated that if the amendment is allowed, the basis of acquisition of the property will altogether change.

In that view of the matter, this Court is of the considered opinion that if the amendment is allowed at this stage, the Defendants will be prejudiced.

Further, the Plaintiffs have failed to comply with the requirement of the Proviso to Order VI Rule 17 CPC.

The suit is of the year 2010 and it is at the stage of argument. If the amendment is allowed at this stage, it may lead to further lingering of the matter.

Accordingly, I find no infirmity in the impugned order. Hence, the CMP, being devoid of any merit, stands dismissed.

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

…………………………..