Orissa High Court
Arun Parida vs Maheswar Das And Others on 13 November, 2023
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Nov-2023 10:23:54
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1657 OF 2016
(An application under Article 227 of the
Constitution of India)
*****
Arun Parida
...... Petitioner
-Versus-
Maheswar Das and others
....... Opp. Parties
Advocates appeared:
For Petitioner : Mr. G.N. Parida, Advocate
on behalf of
Mr. Soumya Mishra, Advocate
For Opp. Parties : Mr. Budhiram Das, Advocate
(For Opp. Party Nos.1 to 9)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 13.11.2023
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JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. Order dated 6th October, 2016 (Annexure-8) passed by
learned Civil Judge (Junior Division), Betnoti, Mayurbhanj in
C.S. No.253 of 2001 is under challenge in this CMP, whereby an
application under Order VI Rule 17 CPC filed by the Defendant
Signature Not Verified // 2 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Nov-2023 10:23:54
No.2-Petitioner for amendment of the written statement, has
been rejected.
3. Mr. Parida, learned counsel being authorized by Mr.
Mishra, learned counsel for the Petitioner submits that the suit
has been filed for declaration of right, title and interest of the
Plaintiffs over the suit property, correction of R.O.R., recovery
of possession of the suit land from Defendant No.2 as well as for
permanent injunction. After closure of evidence from both the
sides, the Defendant No.2-Petitioner filed an application under
Order XVIII Rule 17 CPC to recall D.W.1 to lead further
evidence with regard to execution of the sale deeds, which were
in the nature of mortgaged deeds. The said application was
rejected vide order dated 13th August, 2010 under Annexure-5.
Assailing the same, the Petitioner preferred W.P.(C) No.14722
of 2010 and this Court vide order dated 9th November, 2015
dismissed the said writ petition holding as under:
"During course of argument, copy of the written
statement was produced before this Court and petitioner
substantiated his argument relying particularly on
paragraph-11 of the written statement. Reading of
Paragraph-11 of the written statement nowhere discloses
any pleading regarding the sale deed sought to be
introduced. Law is fairly settled that no evidence is
permitted in absence of pleading in the written statement.
In absence of any pleading with regard to the document
sought to be incorporated, this Court finds evidence on
such document is wholly impermissible and accordingly
the reasons assigned by the trial court cannot be found
faulted. Accordingly, there is no scope for interference in
the impugned order.
The writ petition is accordingly dismissed."
4. Since this Court was not inclined to entertain the
application, as no evidence could be permitted to be adduced
Signature Not Verified // 3 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Nov-2023 10:23:54
without a pleading, an application under Order VI Rule 17 CPC
was filed by the Defendant No.2-Petitioner to introduce a
pleading with regard to R.S.D. No.302 dated 5th February, 1958
executed by Khetramohan Parida, father of Defendant No.1,
R.S.D No.3123 dated 12th May, 1961 and R.S.D. No.3911 dated
4th June, 1962, executed by Defendant No.1 and late Dinabandhu
Parida in favour of the Plaintiffs. Learned trial Court holding
that the evidence from both the sides have already been closed
and the suit is at the stage of argument, rejected the petition.
5. It is also observed by learned trial Court that the said
mortgaged deeds will not decide the real question in controversy
between the parties and if at all the said documents which were
executed in the year, 1961 was with the Defendant No.2 as
admitted by him, then it would have been mentioned in the
written statement. Thus, holding that the case of the Defendant
No.2-Petitioner does not come under the proviso to Order VI
Rule 17 CPC, learned trial Court rejected the petition. Hence,
this CMP has been filed.
6. It is submitted by learned counsel for the Petitioner that
the documents are necessary for just adjudication of the suit.
Mention has been made about those documents at Paragraphs-10
and 11 of the written statement filed by the Petitioner. Mr.
Parida, learned counsel also brings notice of this Court to the
prayer in the counter-claim stating that the Defendant No.2-
Petitioner has prayed for declaration of the sale deed, i.e., R.S.D.
No.302 dated 5th February, 1958 executed by Khetra Parida in
favour of the Plaintiffs, R.S.D. No.3123 dated 12th May, 1961
Signature Not Verified // 4 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Nov-2023 10:23:54
and R.S.D. No.3911 dated 4th June, 1962 to be void and not
acted upon. Although the Defendant No.2 was in possession of
those documents, it could not be produced at the time of
adducing evidence in the matter. As such, after closure of
evidence, an application under Order XVIII Rule 17 CPC was
filed to recall D.W.1 to adduce evidence in respect of those
documents. The said application was rejected and was confirmed
by this Court in W.P.(C) No.14722 of 2010 under Annexure-6
holding that no documents can be admitted in evidence without
pleading to that effect. Accordingly, the petition under Order VI
Rule 17 was filed.
7. Mr. Parida, learned counsel for the Petitioner also relied
upon the case law in Usha Balashaheb Swami and others -v-
Kiran Appaso Swami and others, reported in (2007) 5 SCC 602,
wherein at Paragraphs-18 and 19, it is held as under:
"18. It is now well-settled by various decisions of this
Court as well as those by High Courts that the courts
should be liberal in granting the prayer for amendment of
pleadings unless serious injustice or irreparable loss is
caused to the other side or on the ground that the prayer
for amendment was not a bonafide one. In this connection,
the observation of the Privy Council in the case of Ma
Shwe Mya v. Maung Mo Hnaung may be taken note of.
The Privy Council observed:
"All rules of courts are nothing but
provisions intended to secure the proper
administration of justice and it is, therefore,
essential that they should be made to serve and be
subordinate to that purpose, so that full powers of
amendment must be enjoyed and should always be
liberally exercised, but nonetheless no power has yet
been given to enable one distinct cause of action to
be substituted for another, nor to change by means
of amendment, the subject-matter of the suit."
Signature Not Verified // 5 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Nov-2023 10:23:54
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."
8. It is submitted that the amendment sought for will not
change the nature and character of the suit. Those are formal in
nature and will assist the Court for proper adjudication of the
suit. The Plaintiffs will not be taken by surprise, if the
amendment is allowed, as reference to those documents has
already been made in the plaint as well as in the written
statement. For just adjudication of the suit, the amendment is
necessary. He, therefore, prays for setting aside the impugned
order under Annexure-8 and to direct learned trial Court to allow
the amendment sought for.
9. Mr. Das, learned counsel for the Plaintiffs-Opposite Party
Nos.1 to 9 submits that the averments both in the plaint as well
as in the written statement filed by the Defendant No.2 clearly
disclose that the documents sought to be introduced by proposed
amendment are the sale deeds. By way of amendment, the
Petitioner sought to describe those documents as mortgaged
deeds. As rightly held by learned trial Court, those documents
are not necessary for proper adjudication of the suit. Further,
reference to those documents have already made in the pleadings
Signature Not Verified // 6 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Nov-2023 10:23:54
of both the parties. However, by introducing the pleading, the
Defendant No.2 tried to introduce a story that those deeds were
in fact mortgaged deeds and not sale deeds. If at all such
amendment is allowed, it will certainly prejudice the Plaintiffs,
as evidence from both the sides has already been closed. There
is no material on record to show that the proposed amendment
was not within the knowledge of Defendant No.2. Hence, he
submits that learned trial Court have committed no error in
dismissing the petition under Order VI Rule 17 CPC. He,
therefore, prays for dismissal of the CMP.
10. Considering the rival contentions of the parties, this
Court finds that the proposed amendment were sought to be
introduced after closure of evidence from both the sides. On
perusal of the petition for amendment at Annexure-7, it appears
that the same was in the knowledge of Defendant No.2 at the
time of filing of the written statement. The documents were also
available with him at the time of filing of the written statement
along with counter-claim. By virtue of proposed amendment,
the Defendant No.2 sought to introduce a story that those
documents are, in fact, mortgaged deeds. If at all such an
amendment is allowed, it will change the basis of the claim of
the Defendant No.2, as set out in Paragraphs-10 and 11 of the
written statement.
11. Basing upon the available pleading, parties have led their
evidence. The suit is at the stage of argument. The Defendant
No.2 has not made out any case to bring the proposed
amendment within the ambit of proviso to Order VI Rule 17
Signature Not Verified // 7 //
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 14-Nov-2023 10:23:54
CPC. There is no dispute to the case law cited by Mr. Parida,
learned counsel for the Petitioner, but the same is of no
assistance to this case, as the Petitioner has not made out any
case under the proviso to Order VI Rule 17 CPC. As such, I find
no infirmity in the impugned order under Annexure-8.
12. Accordingly, the CMP being devoid of any merit stands
dismissed.
13. Interim order dated 8th November, 2016 passed in Misc.
Case No.1747 of 2016 stands vacated.
Urgent certified copy of this judgment be granted on
proper application.
(K.R. Mohapatra)
Judge
Orissa High Court, Cuttack,
Dated 13th November, 2023/Madhu
