Indramani Jena And Others Vs Babaji Charan Nayak

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 10th October, 2023 (Annexure-3) passed by learned Civil Judge (Junior Division), Nimapara in T.S. No.27 of 1997 is under challenge in this CMP, whereby an application filed by the Plaintiff-Opposite Party for amendment of the plaint, has been allowed.

Mr. Kar, learned counsel for the Petitioners submits that the suit was dismissed vide judgment dated 18th November, 2000. Assailing the same, the Plaintiff preferred RFA No.9/11 of 2018/2001. Learned Additional District Judge, Nimapara allowed the said appeal and remitted the matter for identification of the land by deputing a Survey knowing Commissioner. The parties are also allowed to adduce evidence in the matter. After remand, an application under Order VI Rule 17 CPC was filed by the Plaintiff-Opposite Party to amend the plaint and thereby proposing to change the dimension of the property.

It is his submission that learned appellate Court while remitting the matter has categorically stated that the evidence, already available on record, shall be taken into consideration by learned trial Court while considering the suit afresh. The parties were also directed to adduce further evidence. Thus, the proposed amendment has not only taken away the effect of the evidence available on record with regard to identity of the land but also changed the basis of the suit. It is his submission that the Petitioners do not have any objection with regard to description of the land by putting the consolidation plot numbers. But the impugned order has certainly prejudiced the Petitioners, who are the Defendants. Learned trial Court although discussed the rival contentions of the parties, but failed to take into consideration the effect of amendment sought for by the Plaintiff-Opposite Party. He, therefore, submits that the impugned order under Annexure-3 is not sustainable and is liable to be set aside.

Considering the submission made by learned counsel for the Petitioner and keeping in mind that the suit is of the year, 1997, this Court feels that issuance of notice to the Opposite Party will further delay the matter. On perusal of the impugned order, it appears that learned trial Court has not taken into consideration the effect of amendment sought for by the Plaintiff. It appears that by way of amendment, the Plaintiff had completely changed the dimension of the suit property. If that be so, then it would certainly prejudice the Defendants, as they have already led evidence, which is directed to be taken into consideration by learned appellate Court while remitting the matter. This aspect was not taken into consideration by learned trial Court while adjudicating the petition under Order VI Rule 17 CPC. In that view of the matter, this Court sets aside the impugned order under Annexure-3 and remits the matter to learned Civil Judge (Junior Division), Nimapara for fresh consideration of the petition under Order VI Rule 17 CPC giving opportunity of hearing to the parties concerned and keeping in mind the observation made hereinabove.

With the aforesaid observation and direction, the CMP is disposed of.

Since the CMP is disposed of without issuing notice to the Opposite Party, he is at liberty to seek for variation of this order, if he feels aggrieved.

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

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