Krishna Kumari Patra @ Patro vs Bijaya Laxmi Patra And Another
2023 Latest Caselaw 407 Ori

                   IN THE HIGH COURT OF ORISSA AT CUTTACK
                                CMP NO. 1376 OF 2022
                 Krishna Kumari Patra @ Patro        ....    Petitioner
                                      Mr. Dayananda Mohapatra, Advocate
                                         -versus-
                 Bijaya Laxmi Patra and another      .... Opp. Parties


                      CORAM:
                      JUSTICE K.R. MOHAPATRA
                                   ORDER

Order No.                        11.01.2023

   1.       1.      This matter is taken up through hybrid mode.

2. The Petitioner in this CMP seeks to assail the order dated 9th December, 2022 (Annexure-5) passed by learned Senior Civil Judge, Aska in C.S. No.9 of 2014, whereby an application filed by the Petitioner under Order VI Rule 17 C.P.C. has been rejected.

3. It is submitted by Mr. Mohapatra, learned counsel for the Petitioner that the suit has been filed for declaration of right, title and interest over the suit property and also for a declaration that the Plaintiff has right of passage over Survey No.76 to access her land under Survey No.73/2 and other reliefs. During pendency of the suit, settlement operation was concluded and Hal R.O.R. was published in the year, 2014. As the properties have been described as per sabik records, it was necessitated to amend the plaint. The settlement operation was not within the knowledge of the Plaintiff. She came to know about the same when the Defendants exhibited the settlement map in course of their evidence. As such, the Plaintiff filed an application to

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amend the pleadings as well as schedule of the plaint with reference to Hal Settlement. Learned trial Court holding that the application for amendment of the plaint was filed after commencement of the trial and there is no explanation that in spite of due diligence, the Plaintiff could not have sought for the proposed amendment, rejected the application. Hence, this CMP has been filed.

4. Mr. Mohapatra, learned counsel for the Petitioner further submits that if the decree is passed without referring to Hal settlement record, the Petitioner may face difficulty in executing the same. As such, the amendment is essential for just adjudication of the suit. It is his submission that amendment sought for will neither change the nature and character of the suit nor it will prejudice the Defendants. Hence, he prays for setting aside the impugned order and to direct the learned trial Court to allow the petition for amendment.

5. Taking into consideration the submission made by learned counsel for the Petitioner and on perusal of the record, it is apparent that settlement operation was concluded and R.O.R. was published on 31st July, 2014, i.e. in the year, the suit was filed. However, the application for amendment was filed on 27th February, 2018, admittedly after commencement of the trial. While explaining due diligence, the Plaintiff-Petitioner has only stated that "since the latest settlement plot numbers have come out and new settlement map of the suit village has already been published, it has now become incumbent upon the Plaintiff to supply the new settlement plot numbers in the suit schedule, so that there would be no difficulty for execution of the decree"

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and at para-9 of the petition it has been stated that "all these facts were not within the knowledge of the Plaintiff when the suit was filed even when trial of the suit commenced".

6. It appears that the Defendants have preferred SRP No.551 of 2019 before the Additional Commissioner, Settlement & Consolidation, Berhampur, Ganjam challenging the R.O.R. Since the R.O.R. was published in the year, 2014, i.e. in the year, the suit was filed, it cannot be said that the Petitioner had no knowledge of publication of the R.O.R., only relying upon a bald plea taken in the petition.

7. Be that as it may, the plot and khata numbers can be well taken care of in the judgment, as it has already been exhibited by the Defendants, as submitted by Mr. Mahapatra, learned counsel for the Petitioner. Since the suit is at the stage of argument, I am not inclined to entertain the CMP at a belated stage. As such, I find no infirmity in the impugned order.

8. With the aforesaid observation, the CMP is disposed of.

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

                                          (K.R. Mohapatra)
bks                                            Judge