Orissa High Court
M/S.Hotel Akbari Continental ... vs The Writ Petition Involves ... on 22 November, 2022
ORISSA HIGH COURT : C U T T A C K
W.P.(C) NO.8440 OF 2008
In the matter of an application under Articles 226 & 227
of the Constitution of India.
M/s.Hotel Akbari Continental Pvt. Ltd. : Petitioner
-Versus-
Arfa Khanam & ors. : Opp.Parties
For Petitioner : M/s.G.Mukherji, Sr.Adv.,
Mr.P.Mukherji, A.C.Panda
& M.R.Barik
For O.P.1 : M/s.A.K.Mishra & Mr.S.Latif.
For O.Ps.2 to 17 : None
CORAM :
JUSTICE BISWANATH RATH
Date of Hearing & Judgment : 22.11.2022
1. The Writ Petition involves rejection of an application for
amendment of written statement as well as accepting a counter-claim at
the instance of the Defendants. Undisputedly, such an attempt is made
after commencement of evidence and after there is lot of progress in
recording of the evidence.
2. Taking this Court to Paragraph-9 of the written statement and
reading together with the proposed amendment, Mr.G.Mukherjee, learned
senior counsel for the Petitioner-Defendant No.7 claims, looking to the
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pleading in Paragraph-9 of the written statement, the Defendants have
already put forth their claim of right over the disputed property by way of
adverse possession. In bringing the further pleading through the proposed
amendment, it is claimed that there is only an attempt to elaborate the
claim on adverse possession and the counter-claim made therein is also
bringing in relief in consonance with the averments made in Paragraph-9
of the written statement. It is taking this Court to the observation of the
trial court in the rejection of such application, learned senior counsel for
the Petitioner submits, looking to the nature of proposed amendment and
the prayer by way of counter-claim remaining in consonance with
Paragraph-9 of the written statement, there has been failure in
appreciation of such aspect by the trial court, further the trial court also
failed in appreciating that in refusal of such claim, the Defendants will be
precluded even bringing such issue by way of independent suits. It is in
the circumstance, learned senior counsel for the Petitioners claims, there
would not have been any prejudice in allowing such claim provided
however looking to the suffering of the Plaintiff, if any, appropriate
award of cost would have been there.
3. Mr.A.K.Mishra, learned counsel for the Plaintiff-O.P.1 in his
objection referring to the counter-claim aspect submits that the counter-
claim by way of amendment was grossly time barred. Taking this Court
to the findings of the trial court, Mr.Mishra attempted to support the
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findings as well as rejection of such application. There is however no
strong resistance in bringing in further pleadings, as it is in terms of the
description in Paragraph- 9 of the Written Statement.
4. Considering the rival contentions of the Parties and looking to the
plea already taken in the written statement in Paragraph-9 of the written
statement by the Defendants, this Court finds, the pleading already
existing by way of proposed amendment is simply an explanation to the
pleadings already existing. No doubt there is delayed attempt in bringing
such application and attempt made only after some evidence already
came to be recorded. Considering the nature of amendment and reading
through the proposed amendment, this Court finds, for there is already
involvement of a suit between the Parties, it is better that all the issues
and developments taking place and relevant for the purpose of trial
should be taken into account in the effective disposal of the suit and
entertaining such amendment, there may not be any prejudice to the
Plaintiff, as the Plaintiff also gets opportunity of evidence dependent on
the proposed amendment.
5. Coming to consider the objection raised by Mr.A.K.Mishra,
learned counsel for O.P.1 on the timing of counter-claim, this Court
observes, allowing the amendment or allowing incorporation of counter-
claim does not allow any counter-claim. In the event, an additional
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written statement is brought along with the counter-claim, the Plaintiff
not only has the scope of bringing in a written statement and further
evidence, it is still open to the trial court to take into account the issues
raised by either Party. Delay aspect involved there can also be agitated
and adjudicated through Civil Court proceeding. At the same time, this
Court finds, there is sufficient delay in bringing such application. The suit
was instituted in the year 1999 and amendment application was filed in
the year 2008. The Writ Petition was filed in 2008 and pending for nearly
fourteen years. There is definite prejudice to the Plaintiff in the meantime.
6. In the circumstance, this Court while interfering with the impugned
order dated 30.4.2008 at Annexure-4 and setting aside the same, allows
the Application for amendment with direction to entertain the counter-
claim raised by Defendant No. 7. Defendant No.7 is also to bring the
additional written statement and counter-claim within 2 weeks hence. It is
at the same time, considering the suffering of the Plaintiff for pendency of
the proceeding for such long years and the timing in undertaking such
exercise by Defendant No.17, this Court to compensate the loss of time
and the suffering by the Plaintiff imposes a cost of Rs.5000/- (rupees five
thousand) to be paid to the Plaintiff in the trial court at least within ten
days. This Court here finds, for allowing the amendment application,
there will be filing of amended written statement and a consequential
counter-claim, which should be filed within 2 weeks, as a consequence
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the Plaintiff has the liberty to file written statement to the counter-claim
at least within two weeks from the date of this order.
7. It is at this stage of the matter, considering that there is
entertainment of additional pleading in the written statement and a
counter-claim, in the event, any of the Parties desires to roll back
witness(s) for further evidence or further cross-examination, Parties have
such liberty. All such Parties have also the liberty to get into fresh
evidence or cross-examination dependent on the additional written
statement.
8. Considering the suit is pending since 1999, the suit is directed to be
disposed of at least within a period of four months from the date of filing
of additional written statement filed by Defendant No 7.
9. With this observation/direction, the Writ Petition stands succeed.
There is, however, no order as to cost.
...............................
(Biswanath Rath, J.)
Orissa High Court, Cuttack.
The 22nd November, 2022/M.K.Rout, A.R.-cum-Sr.Secy.
