Monalisha Mishra And Another vs Sanjib Kumar Mishra And Others

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 17th February, 2024 (Annexure-6) passed in C.S. No.207 of 2021 is under challenge in this CMP, whereby learned Additional Senior Civil Judge, Puri allowed an application filed by Defendant No.3-Opposite Party No.3 for amendment of his written statement.

Mr. Kar, learned counsel for the Petitioners submits that the suit has been filed for a declaration that the sale deed dated 7th November, 2003 executed in the name of Defendant No.1 is fraudulent and not binding on the Plaintiffs. They also prayed for setting aside the R.O.Rs in respect of Khata No.505/161 of the suit property, permanent prohibitory and mandatory injunction and other consequential relief. During pendency of the suit, the Defendant No.1 filed an application under Order VI Rule 17 C.P.C. for amendment of his written statement, which was allowed vide order under Annexure-6. By virtue of the proposed amendment, the Defendant No.1 tried to introduce a plea questioning the identity of the deceased Plaintiff No.1, namely, Ashamani Mishra, wife of late Michhu Mishra. In the written statement, nowhere the Defendant No.1 raised any doubt with regard to the identity the deceased Plaintiff No.1. Thus, amendment sought for is an afterthought and by virtue of the proposed amendment, the Defendant No.1 is trying to take away the admission made in his written statement. Learned trial Court although took note of the objection raised by the Plaintiffs-Petitioners, but failed to discuss the same and only by relying upon the ratio decided in Life Insurance Corporation of India – v- Sanjeev Builders Pvt. Ltd. and another, reported in 2022 SCC Online SC 1128, allowed the petition for amendment holding that trial of the suit has not yet commenced. It is his submission that by virtue of the proposed amendment, the Plaintiffs-Petitioners are seriously prejudiced. Hence, the impugned order under Annexure-6 being cryptic one should be set aside.

Mr. Mishra, learned counsel for Opposite Party No.1 vehemently objects to the same. It is his submission that in the written statement, nowhere the Defendant No.1 had admitted the identity of the deceased Plaintiff No.1 to be the wife of late Michhu Mishra. When a memo was filed to delete the name of the deceased Plaintiff No.1 from the cause title of the plaint, an enquiry was made by Defendant No.1 and it came to learn that the Plaintiff No.1 had died much prior to filing of the suit. Thus, in order to incorporate the pleadings for just adjudication of the suit, the petition for amendment was filed describing the circumstance for which amendment to the written statement was necessitated. Taking note of the same, learned trial Court allowed the petition for amendment of the written statement. Hence, there is no illegality in the impugned order under Annexure-6.

Taking note of the submissions made by learned counsel for the parties and on perusal of the record, it appears that trial of the suit has not yet commenced. It also appears from the written statement (Annexure-2) that nowhere the Defendant No.1 had admitted the identity of the deceased Plaintiff No.1, namely, Ashamani Mishra, to be the wife of late Michhu Mishra. It is also stated in the petition for amendment at Annexure-3 that there are some typographical errors crept in the written statement and that on enquiry, the Defendant No.1 came to know that the Plaintiffs have suppressed the material facts with regard to the identity of the deceased Plaintiff No.1. It is also stated in the petition for amendment that settlement records revealed that Ashamani Mishra, wife of late Michhu Mishra, died in or before 2006. Since new facts came to their knowledge during pendency of the suit, petition for amendment was filed to incorporate the same for just adjudication of the suit.

On perusal of the impugned order under Annexure-6, this Court finds that although the petition for amendment is not well discussed one but in view of the ratio decided in Life Insurance Corporation of India (supra), since amendment sought for before commencement of the trial and in the opinion of learned trial Court, it was required for just adjudication of the suit, learned trial Court adopted a liberal approach in entertaining the application. Thus, I find no infirmity in the impugned order under Annexure-6.

Accordingly, the CMP being devoid of any merit stands dismissed.

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

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