Ramesh Chandra Pal vs Dillip Pal And Another

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 30th November, 2023 (Annexure-1) passed by learned Senior Civil Judge, Jaleswar in C.S. No.285 of 2020 is under challenge in this CMP, whereby an application under Order VI Rule 17 C.P.C. filed by the Plaintiffs-Opposite Parties has been allowed.

Mr. Sahoo, learned counsel for the Petitioner submits that the Plaintiffs-Opposite Parties had filed an application under Order VI Rule 17 C.P.C. to amend the prayer of the plaint by incorporating the declaration with regard to RSD No.1010150041 dated 13th January, 2015 along with Mutation R.O.R. Khata No.106/47 to be void, illegal, inoperative and not binding on them and also incorporation of certain other reliefs. It is her submission that application under Order VI Rule 17 C.P.C. was filed after closure of the evidence from the side of the Plaintiffs-Opposite Parties and examination of three witnesses on behalf of the Defendant-Petitioner. Learned trial Court although held that application of the Plaintiffs lacked due diligence, but allowed the application in the interest of justice and to avoid multiplicity of litigation. Such a finding is not sustainable in the eyes of law in view of the mandatory provision of proviso to Order VI Rule 17 C.P.C. Hence, he prays for setting aside the impugned order under Annexure-1.

Considering the submission made by learned counsel for the Petitioner and taking into consideration that the suit is at the fag end of the trial, this Court refrains from issuance of notice to the Opposite Parties awaiting their response. It is more so in view of the nature of order proposed to be passed in this CMP.

Perusal of the impugned order under Annexure-1 itself shows that the Plaintiffs have not shown due diligence as observed by learned trial Court. Proviso to Order VI Rule 17 C.P.C. clearly mandates that in order to maintain an application under Order VI Rule 17 C.P.C., a party seeking for amendment of the pleadings has to show that in spite of due diligence, it could not have raised the matter before commencement of the trial. The same is conspicuously absent in the present case.

In that view of the matter, this Court sets aside the impugned order under Annexure-1 and remits the matter back to learned trial Court for fresh consideration of the petition under Order VI Rule 17 C.P.C. filed by the Plaintiffs-Opposite Parties, giving opportunity of hearing to the parties concerned.

The CMP is disposed of accordingly.

Since the CMP is disposed of without issuing notice to the Opposite Parties, they are at liberty to seek for variation of this order, if they feel aggrieved.

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

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