Orissa High Court
Bhikari Charan Mishra vs Santosh Kumar Patra And Others on 3 February, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.42 of 2023
Bhikari Charan Mishra .... Petitioner
Mr. Soumya Mishra, Advocate
-versus-
Santosh Kumar Patra and others .... Opp. Parties
CORAM:
JUSTICE K.R. MOHAPATRA
JUDGMENT
Order No. 03.02.2023
1. 1. This matter is taken up through Hybrid mode.
2. Order dated 1st November, 2022 (Annexure-7) passed by
learned Civil Judge (Senior Division), Patnagarh in Civil Suit
No.189 of 2016 is under challenge in this CMP, whereby an
application filed for amendment of the plaint by the Defendant
No.1/Petitioner, has been rejected.
3. Mr. Mishra, learned counsel for the Petitioner submits
that the suit has been filed by Opposite Party No.1 for
declaration of right, title and interest over the suit land and for
cost. The Defendant No.1 appeared and filed written statement
stating that Kasinath Patra is father of the Plaintiff-Santosh
Kumar Patra, who died since more than one year back. In the
year 1994, family members of the Plaintiff were performing
'Kartika Brata'. Kasinath Patra has gifted away the schedule of
land to the written statement to the Defendant No.1 on the
Kartika Purnami day of 1994 in lieu of his service as Kula
Purohita of his family with the knowledge of all. He also
delivered possession of the schedule land to the Defendant No.1
and from that date he is in possession over the same exercising
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his right, title and interest thereon. He also filed counterclaim
praying inter alia declaration of his right, title and interest over
the suit land. After closure of the evidence of the Plaintiff, when
the Defendant No.1/Petitioner was preparing to lead evidence, it
came to light that Advocate engaged by Defendant No.1 did not
act properly to defend and safeguard his interest. It also came to
light that some relevant facts were not pleaded in the written
statement. Hence, an application under Order VI Rule 17 CPC
was filed for amendment of the written statement filed by
Defendant No.1. Amongst all, in para-6, the Defendant No.1
proposed to incorporate the pleading as under:-
"6. 'That the contents of Para 7 of the written
statement are incorrect and hence denied. It is incorrect to
say that the suit land has been also recorded in the name
of the plaintiff in the mutation ROR in OLR case No.8 of
2008 U/s. 19(c) and that the plaintiff has never alienated
the suit land to anybody in any manner at any point of
time and that so also his father or brother.' In fact the
Plaintiff, deceased Defendant No.2 & Defendant No.3
jointly transferred the suit land to the Defendant No.1
under RSD No.785, dt.17.05.1991 and the Defendant No.1
is in possession over the suit land since the date of
purchase. Mutation ROR if any is forthcoming the same
has been done behind the back of the Defendant No.1 &
the same will not confer any title in favour of the
Plaintiff."
Learned trial Court by misconstruing the scope of amendment
of the written statement in exercise of power under Order VI
Rule 17 CPC, rejected the same as if he was adjudicating the
suit itself. It is his submission that parameters for consideration
of an application for amendment of plaint and a written
statement are completely different. Contradictory and
inconsistent plea can be incorporated to the written statement by
way of amendment, which is not permissible in case of
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amendment of plaint. He relied upon the ratio in the case of
Usha Balasahaheb Swami and others Vs. Kira Appaso Swami
and others, reported in (2007) 5 SCC 602, wherein Hon'ble
Supreme Court held as under:-
"19. It is equally well settled principle that a prayer for
amendment of the plaint and a prayer for amendment of
the written statement stand on different footings. The
general principle that amendment of pleadings cannot be
allowed so as to alter materially or substitute cause of
action or the nature of claim applies to amendments to
plaint. It has no counterpart in the principles relating to
amendment of the written statement. Therefore, addition of
a new ground of defence or substituting or altering a
defence or taking inconsistent pleas in the written
statement would not be objectionable while adding,
altering or substituting a new cause of action in the plaint
may be objectionable.
20. Such being the settled law, we must hold that in the
case of amendment of a written statement, the courts are
more liberal in allowing an amendment than that of a
plaint as the question of prejudice would be far less in the
former than in the latter case [see B.K. Narayana Pillai v.
Parameswaran Pillai (2000(1) SCC 712) and Baldev
Singh & Ors. v. Manohar Singh (2006 (6) SCC 498)].
Even the decision relied on by the plaintiff in Modi
Spinning (supra) clearly recognises that inconsistent pleas
can be taken in the pleadings. In this context, we may also
refer to the decision of this Court in Basavan Jaggu Dhobi
v. Sukhnandan Ramdas Chaudhary (Dead) [1995 Supp (3)
SCC 179]. In that case, the defendant had initially taken
up the stand that he was a joint tenant along with others.
Subsequently, he submitted that he was a licensee for
monetary consideration who was deemed to be a tenant as
per the provisions of Section 15A of the Bombay Rents,
Hotel and Lodging House Rates Control Act, 1947. This
Court held that the defendant could have validly taken
such an inconsistent defence. While allowing the
amendment of the written statement, this Court observed
in Basavan Jaggu Dhobi's case (supra) as follows :..........
21. As we have already noted herein earlier that in
allowing the amendment of the written statement a liberal
approach is a general view when admittedly in the event of
allowing the amendment the other party can be
compensated in money. Technicality of law should not be
permitted to hamper the Courts in the administration of
justice between the parties. In the case of L.J. Leach and
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Co. Ltd. v. Jardine Skinner and Co. [AIR 1957 SC 357],
this Court observed
"that the Courts are more generous
in allowing amendment of the written
statement as the question of prejudice is less
likely to operate in that event".
In that case this Court also held
"that the defendant has right to take
alternative plea in defence which, however,
is subject to an exception that by the
proposed amendment the other side should
not be subjected to serious injustice."
3.1 It is his submission that prejudice, if any, caused to the
Plaintiff can be compensated in terms of cost. If the amendment
is not allowed, it will be more prejudicial to the Defendant No.1
than the prejudice that would have been caused to the Plaintiff,
if amendment is allowed. The amendment sought for will bring
on record the true state of affairs and the suit can be adjudicated
effectively. He, therefore, prays for setting aside the impugned
order under Annexure-7 and to allow the prayer of Defendant
No.1 in the petition under Order VI Rule 17 CPC.
4. Considering the submission of learned counsel for the
Petitioner and on perusal of record, it is apparent that trial of the
suit has already commenced and evidence of the Plaintiff has
already been closed. At this stage, the application under Order
VI Rule 17 CPC was filed introducing a story which is
inconsistent and contradictory to the stand taken in the written
statement. Although it is stated that when the conduct of the
counsel engaged by him came to light the Defendant No.1
immediately thereafter, took step to amend the written
statement, but the same is not believable in absence of any
material to that effect. Only a bald allegation has been made by
the Defendant No.1 in the amendment application without any
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detail particulars to that effect. By way of amendment the
Defendant No.1 sought to introduce a completely new case.
Since the evidence of the Plaintiff has already been closed on
the basis of the available pleadings, amendment of written
statement at this stage will certainly prejudice him. In case of
Life Insurance Corporation of India Vs. Sanjeev Builders
Private Limited, reported in 2022 SCC OnLine SC 1128, it is
held as follows:-
"70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a
subsequent suit if the requisite conditions for application
thereof are satisfied and the field of amendment of pleadings
falls far beyond its purview. The plea of amendment being
barred under Order II Rule 2 CPC is, thus, misconceived and
hence negatived.
(ii) All amendments are to be allowed which are necessary
for determining the real question in controversy provided it
does not cause injustice or prejudice to the other side. This is
mandatory, as is apparent from the use of the word "shall",
in the latter part of Order VI Rule 17 of the CPC.
(iii) The prayer for amendment is to be allowed
(i) if the amendment is required for effective and proper
adjudication of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other
side,
(b) by the amendment, the parties seeking amendment does
not seek to withdraw any clear admission made by the party
which confers a right on the other side and
(c) the amendment does not raise a time barred claim,
resulting in divesting of the other side of a valuable accrued
right (in certain situations).
(iv) A prayer for amendment is generally required to be
allowed unless
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(i) by the amendment, a time barred claim is sought to be
introduced, in which case the fact that the claim would be
time barred becomes a relevant factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is mala fide, or
(iv) by the amendment, the other side loses a valid defence.
(v) In dealing with a prayer for amendment of pleadings, the
court should avoid a hypertechnical approach, and is
ordinarily required to be liberal especially where the
opposite party can be compensated by costs........."
The amendment sought for do not satisfy the aforesaid
requirements, as set out by Hon'ble Supreme Court. It, however,
appears that learned trial Court has made some observations on
the correctness of the sale deed. But certainly the same will not
be a ground for adjudication of the suit. Since the parties have
contested the suit on the basis of the pleadings and materials
available on record, amendment of the written statement at the
belated stage, i.e., after closure of the evidence from the side of
the Plaintiff, should not be allowed. Hence, learned trial Court
has rightly rejected the petition under Order VI Rule 17 CPC for
amendment of the CMP.
5. In view of the above, the CMP merits no consideration
and hence the same is dismissed as such.
(K.R. Mohapatra)
Judge
s.s.satapathy
