Sudesh Thakur vs Dipak Thakur

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Though this matter was listed for orders, on consent of learned counsel for the parties, it is taken up for final disposal.

Order dated 17th January, 2024 (Annexure-5) passed by learned 1st Senior Civil Judge, Cuttack in C.S.(I) No.527 of 2023 is under challenge in this CMP, whereby an application filed by the Petitioner to amend the written statement has been rejected.

Mr. Dash, learned counsel for the Petitioner submits that the suit has been filed by Opposite Party for eviction of the Petitioner from the suit Schedule ‘A’ property and to handover vacant possession of the suit house to the Plaintiff-Opposite Party on the basis of the registered gift deed executed by the recorded tenant in his favour. The Plaintiff-Opposite Party has also made a monetary claim of Rs.17,500/- per annum along with interest till vacation of Schedule ‘A property. After death of the mother of the parties, the Petitioner while searching the room of his mother could find a registered partition deed.

Hence, he filed an application for amendment of the written statement. Learned trial Court by passing a cryptic order holding that the petition for amendment should have been filed before commencement of the trial, rejected the same. It is further held that if the petition for amendment is allowed, it will drastically change the nature and character of the suit by introducing a new story. He further submits that mother of the parties was kept in confinement of Plaintiff-Opposite Party and the Defendant-Petitioner was not allowed to meet his mother or enter the room in which their mother was staying. After the death of their mother on 13th December, 2023, the Defendant-Petitioner being the elder son performed the obsequies and during performance of the obsequies, only the Defendant-Petitioner came across the partition deed in question and filed the petition for amendment of the written statement stating that fraud has been played by the Plaintiff-Opposite Party in obtaining the registered gift deed. Thus, in spite of exercise of due diligence, the Defendant-Petitioner could not have come across the deed of partition from which the Petitioner came to know about the fraud played by the Plaintiff-Opposite Party. This aspect was not considered by learned trial Court while adjudicating the petition for amendment. Hence, the matter requires fresh consideration.

Mr. Bhuyan, learned counsel for Opposite Party vehemently objects to the same. It is his submission that the scope of amendment of the pleadings after commencement of the trial is very limited. Party seeking amendment has to establish that in spite of due diligence, he/she could not have raised the matter before commencement of the trial. By narrating a cock and bull story, the Defendant-Petitioner seeks to amend the written statement, which is not permissible in law. Accordingly, learned trial Court has committed no error in dismissing the petition for amendment. He further submits that by the time the petition for amendment was filed, one witness on behalf of the Plaintiff-Opposite Party had already been examined. Thus, the petition for amendment was rightly rejected being not maintainable.

Taking into consideration the submissions made by learned counsel for the parties and on perusal of the petition under Order VI Rule 17 C.P.C., more particularly at paragraphs-1 and 4 of the petition, this Court finds that the Defendant-Petitioner had explained the due diligence in not filing the petition before commencement of the trial. Although an explanation has been given by the Defendant-Petitioner regarding exercise of due diligence, but the same was not discussed in the impugned order.

In that view of the matter, this Court feels that the matter requires fresh consideration. Accordingly, the impugned order under Annexure-5 is set aside and the matter is remitted to learned trial Court for fresh consideration of the petition under Order VI Rule 17 C.P.C., giving opportunity of hearing to the parties concerned. Parties are directed to cooperate with learned trial Court for early hearing of the petition under Order VI Rule 17 C.P.C.

It is made clear that this Court has not expressed any opinion on the merits of the case of either of the parties.

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

The interim order dated 6th February, 2024 passed in I.A. No. 88 of 2024 stands vacated.

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

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