Orissa High Court
CMP/571/2018 on 11 January, 2021
CMP No. 571 of 2018
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8. 11.01.2021 Due to outbreak of COVID-19, this matter is taken
up through Videoconferencing.
2. Heard Miss Deepali Mahapatra, learned counsel
for the petitioner and Mr.Prasanna Kumar Nanda, for
opposite parties 2 and 3.
3. Petitioner, in this CMP assails the order dated
27.03.2018 (Annexure-6) passed by the learned 2nd
Additional District Judge, Berhampur in RFA No.33 of
2016, whereby he rejected an application filed for
amendment of the plaint at the appellate stage.
4. Miss Mahapatra, learned counsel for the petitioner
submits that the suit in CS No.245 of 2015 was filed for
specific performance of contract before the learned Civil
Judge (Senior Division), Beherampur. The claim of the
plaintiff-petitioner was based on an agreement for sale
dated 18.01.2000. However, learned Civil Judge vide
order dated 27.03.2015 dismissed the said suit on the
ground of limitation in exercise of power under Order
VII Rule 11(d) Code of Civil Procedure, 1908. It is
submitted that earlier the petitioner had filed CS No.10
of 2010 before the learned Civil Judge (Junior Division),
Berhampur, for permanent injunction, which was
dismissed, against which RFA No.50 of 2014 was
preferred, which was also dismissed vide judgment and
order dated 27.03.2015 with an observation that a
simple suit for injunction against the true owner is not
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maintainable. Thereafter, the petitioner has filed CS
No.245 of 2015 for the aforesaid relief. During pendency
of the appeal, when it came to the knowledge of the
plaintiff/petitioner that there was an oral agreement
subsequent to the agreement for specific performance of
contract waiving out the stipulation of period of
execution of sale deed made in the written agreement, a
petition under Order VI Rule 17 CPC was filed for
amendment of the plaint. The proposed amendment
reads as follows:-
"The suit agreement was entered between
the appellant (plaintiff) and respondent
(defendant) on 18.01.2000 under stipulation for
execution of necessary sale deed in favour of the
appellant within eleven months from the date of
execution of the agreement. But later as the
parties are closely related to each other by
mutual consent they had waived out the
stipulation as to the period fixed for execution of
sale deed. It is a subsequent development to the
execution suit agreement and parties are orally
agreed for performance of the contract and
execution of necessary sale deed as per their own
convenience. That in fact due to subsequent
mutual consent between the parties, the original
suit agreement was amended. In view of the close
relationship of the parties they did not feel the
necessity for incorporation of the subsequent
amendment to the time speculation either in the
original suit agreement or in a fresh agreement. In
view of the agreement between the parties to the
suit agreement for waiving out the limited period
of eleven months by virtue of the subsequent oral
agreement through mutual consent for performing
the execution of sale deed as per the convenience
of both parties the present suit for enforcement of
specific performance of contract for sale of suit
land is tenable. That the subsequent development
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after the execution of suit agreement entered
between the parties waiving out the period fixed
for the limitation and leaving it to the convenience
of both the parties without fixing any stipulation
of time could not be incorporated in the plaint.
Unfortunately, the concerned conducting the case
in the lower court ignored the above said mutual
agreement as not relevant for pleading."
But learned 2nd Additional District Judge, Berhampur
taking into consideration the rival contentions of the
parties, without considering the matter from its proper
perspective, rejected the said application vide order
dated 27.03.2018 (Annexure-6). As such, this CMP is
filed. It is further submitted by Miss Mahapatra that
subsequent development, as stated above, could not be
incorporated in the plaint due to miscommunication
between the petitioner and his learned counsel, which
came to the notice of the applicant at a belated stage
during pendency of the appeal. As such, the application
under Order VI Rule 17 CPC has been filed. It is her
submission that since oral agreement between the
parties waiving out the stipulation of period of execution
of the sale deed, being a material fact for determination
of the issue on limitation, the same should have been
allowed by the petitioner. Accordingly, she prays for
setting aside the order passed under Annexure-6.
5. Mr.Nanda, learned counsel for opposite parties 2
and 3 submits that the CS No.245 of 2015 was
dismissed on the ground of limitation, as it was filed
after 15 years of the alleged agreement for sale was
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executed. There is no infirmity in the impugned order
passed in CS No.245 of 2015 as the plaint was rightly
rejected in exercise of power under Order VII Rule 11(d)
CPC. The plaintiff-petitioner in order to linger and
harass the defendants including the opposite parties 2
and 3 filed an application for amendment during
pendency of RFA No.33 of 2016 with vague plea that
there was an oral agreement waiving out the stipulation
of period of execution of the sale deed pursuant to the
agreement for sale of the year 2000. As such, the
learned appellate Court has committed no error in
rejecting the said petition. Learned appellate Court,
while considering the matter, has taken into
consideration the materials on record and passed a
reasoned order which does not require any interference
under Article 227 of the Constitution. Hence, he prays
for dismissal of the CMP.
6. Having heard the learned counsel for the parties
and on perusal of record, it appears that the suit, i.e.,
CS No.245 of 2015 was filed on the basis of an
agreement for sale on 18.01.2000. At the time of
admission of the suit, learned Civil Judge, while
considering the question of limitation, exercised power
under Order-VII Rule 11(d) CPC and dismissed the suit,
which was challenged in RFA No.33 of 2016. During
pendency of the appeal, the plaintiff-petitioner filed an
application order Order-VI Rule 17 CPC taking the plea
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that subsequent to the agreement dated 18.01.2000 for
sale, on oral agreement waiving the period of execution
of the sale deed was made between the parties for sale
of the property. There is no material available on record
to come a conclusion as to why such a plea could not be
taken by the plaintiff in the suit itself. The plea taken by
the plaintiff is not acceptable. Moreover, in the event,
the proposed amendment is allowed it will change the
foundation of the plaint, which is not permissible.
7. This Court, while exercising supervisory
jurisdiction under Article 227 of the Constitution should
not interfere with the impugned order, which a reasoned
one and is passed on the basis of the materials on
record. Moreover, there is no patent illegality or material
irregularity in the order under Annexure-6. Accordingly,
the CMP is dismissed being devoid of any merit.
7.1 In view of dismissal of the CMP, interim order
dated 24.04.2018 passed in Misc. Case No.592 of 2018
staying further proceeding of RFA No.33 of 2016
pending before the Court of learned 2nd Additional
District Judge, Berhampur stands vacated.
7.2 Authenticated copy of this order downloaded from
the website of this Court shall be treated at par with
certified copy in the manner prescribed in this Court's
Notice No.4587 dated 25.03.2020.
ss
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K.R. Mohapatra, J.
