Orissa High Court
Ramesh Chandra Panda And Others vs State Of Odisha And Another on 8 August, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 17400 OF 2013
Ramesh Chandra Panda and others ..... Petitioner
Mr. A. Rath, Advocate
-versus-
State of Odisha and another .... Opp. Parties
Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 08.08.2022
4. 1. This matter is taken up through hybrid mode.
2. This writ petition has been filed assailing the order dated
8th May, 2013 (Annexure-4) passed by learned Civil Judge
(Senior Division), Chhatrapur in C.S. No. 45 of 2004, whereby
an application filed by the Plaintiffs-Petitioners under Order VI
Rule 17 C.P.C. has been rejected.
3. Mr. Rath, learned counsel for the Petitioners submits
that the suit was initially filed for declaration of right, title and
interest as well as for confirmation of possession over the suit
land. The suit being dismissed, the Plaintiffs-Petitioners preferred
R.F.A. No. 32 of 2006, which was disposed of on 12th June, 2009
with the following order:
"The appeal is allowed on contest, but in the
circumstances without cost. The judgment and decree
of the learned trial court dated 20.3.06 and 3.4.2006
respectively is set aside in the interest of justice. The
suit is remanded back to the learned trial court with an
instruction to readmit the suit under its original number
and to re-open and retry the case from the stage of
framing issues after adding the parties as per the
observation made above and to proceed with the suit in
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accordance with law thereafter. Parties are asked to
appear in the learned trial court on 3.8.2009."
4. After remand, the Plaintiffs filed an application under
Order VI Rule 17 C.P.C. to incorporate paragraph-4(a) in the
plaint giving the details of entry into possession over the suit land
as well as some essential facts to prove the adverse possession
over the same. Learned trial court without realizing the purpose
for which the amendment was sought for, rejected the petition
vide order dated 8th May, 2013, which is under challenge in this
writ petition.
5. Mr. Rath, learned counsel further submits that the
Plaintiffs by virtue of amendment sought for, are not introducing
any new fact. In view of the order of remand passed by learned
Additional District Judge, Fast Track Court, Chhatrapur, more
particularly, to frame additional issue of adverse possession, it
was imperative on the part of the Plaintiffs to bring on record
certain facts and information to prove their title through adverse
possession. Learned trial court being swayed away by the order
of remand recorded a finding that there is no scope to entertain
the petition for amendment. As such, the impugned order is not
sustainable in the eyes of law.
6. Mr. Mishra, learned Additional Standing Counsel, on the
other hand, submits that the suit was initially filed claiming right,
title and interest and confirmation of possession over the suit land
on the basis of an unregistered sale deed. By virtue of
amendment, the Plaintiffs sought to introduce a story which will
certainly change the character of the suit to claim title over the
suit land by virtue of adverse possession, which was never the
case of parties at the beginning. Earlier, the Plaint did not
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contain any date of entry into possession of the suit land.
Introduction of such plea will not only amount to patch of lacuna
but also certainly prejudice the Defendants. P.W.1 in paragraph-
13 has categorically admitted that he has paid penalty to the
Tahasildar for unauthorized occupation of the suit land which
itself defeats the claim of the Plaintiffs on the basis of
unregistered sale deed. He, therefore, prays for dismissal of the
writ petition.
7. Taking into consideration the submissions made by
learned counsel for the parties and on perusal of the record, it
appears that the suit (C.S. No. 45 of 2004) was decreed on
contest in favour of the Plaintiffs. Assailing the same, the
Defendants-Opposite Parties, namely, the State functionaries,
preferred an appeal in RFA No. 32 of 2006. Learned Additional
District Judge, Fast Track Court, Chhatrapur vide his judgment
dated 12th June, 2009 allowed the appeal and remitted the matter
back to learned trial court to try the suit from the stage of framing
of issues by impleading some private parties as well as National
Highways Authorities to the suit. Thus, learned trial court had
the scope only to frame the issues by adding parties and try the
suit from that stage accordingly. Admittedly, the issues are
framed after the respective pleadings of the parties are complete.
Hence, there is no scope to amend the pleadings at this stage,
unless the case of the party seeking amendment falls under the
proviso to Order VI Rule 17 C.P.C.. In the instant case, no such
exception is made out. Moreover, no direction/liberty has been
given by learned appellate court to amend the pleadings. The
plea of Mr. Rath, learned counsel for the Petitioners that in order
to prove their case through adverse possession, the Plaintiffs are
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required to give certain information, i.e. entry into the suit land
and other co-related informations to succeed in their claim for
adverse possession, is not acceptable because the Plaintiffs while
filing the suit had knowledge of entry into the possession of the
suit land. In spite of the same, they did not take such plea in the
plaint, probably for the reason that they claim the suit property on
the basis of an unregistered sale deed. If the amendment sought
for is allowed at this stage, it will certainly change the character
of the suit, i.e. from claiming title over the suit land on the basis
of an unregistered sale deed to that on adverse possession. Hence,
such an amendment is not permissible under law at a belated
stage more particularly after the order of remand passed by
learned appellate court with specific direction.
8. In view of the above, I find no infirmity in the impugned
order. Accordingly, the writ petition stands dismissed.
9. The interim order dated 2nd August, 2013 passed in
Misc. Case No. 16193 of 2013 stands vacated.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge
bks
