Orissa High Court
Manjulata Satapathy vs Nimai Charan Mohanty on 29 July, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. No.843 of 2025
RSA No.244 of 2013
Manjulata Satapathy ........ Appellant
-Versus-
Nimai Charan Mohanty ....... Respondent
Advocate(s) appeared in this case:
For the Appellant : M/s. Mr. Bansidhar Baug,
Sr. Advocate along with
Mr. R.C. Rath, Advocate
For Respondent : M/s. Bibekananda Bhuyan,
Sr. Advocate along with
Ms. S. Sahoo, Advocate
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
th
29 July, 2025
SASHIKANTA MISHRA, J.
This is an application filed by the Defendant
No.1 for amendment of the written statement filed by her
in the suit. This application was filed in the midst of final
hearing of the Second Appeal, and was heard along with
the appeal. The present order shall dispose of the
application, while the appeal is also being disposed of
today separately.
2. By means of this application, Defendant No.1 seeks
to amend the written statement filed by her before the
trial Court to incorporate three paragraphs being
Paragraph Nos.10.1, 10.2 and 10.3. The sum and
substance of the averments sought to be introduced by
way of amendment is that the suit land originally belongs
to Raja of Patia, but Patia estate was auctioned in a
mortgage suit for non-payment of dues. The Raja of
Kanika was the auction purchaser and thereby became
the landlord/intermediary of that estate. He subsequently
gifted the estate to his son, Sailendra Narayan Bhanja
Deo, who became the owner/intermediary of the estate till
its vesting with the Government. There being no
application submitted by the intermediary under Sections
6 and 7 of the OEA Act, the estate was vested in the
Government and accordingly recorded in its name in the
1973 settlement. Raja Krushna Chandra Deb of Patia by
practicing fraud filed an application under Sections 6 and
7 of the OEA Act and thereafter filed T.S. No.58/1993 and
obtained declaration in his favour by an ex-parte decree
by suppressing the material facts. As such, the judgment
and decree being non-est in the eye of law do not confer
any title in favour of Raja Krushna Chandra Deb.
Consequently any transfer of property made by him is
void. There facts being highly material need to be
incorporated in the written statement.
3. Objection has been filed by the Respondent-Plaintiff
questioning the maintainability of the petition at this
stage. It is stated that the application is filed only to delay
the disposal of the appeal. In any event, such stand is
contrary to the stand taken by the appellant-defendant in
her written statement. Both the Courts below having
negatived the plea of the defendant regarding title, she
has no locus standi to seek amendment of her written
statement at this belated stage. Moreover, the delay of 24
years in filing the application has not been explained at
all. The application also does not fulfil the requirement of
due diligence as per Order VI Rule 17 of C.P.C.
4. Heard Mr. B. Baug, learned Senior counsel along
with Mr. R.C.Rath, learned counsel for the appellant-
defendant and Mr. B. Bhuyan, learned Senior counsel
with Ms. S. Sahoo, learned counsel for the plaintiff-
respondent.
5. Mr. Baug would argue that it is the settled positon of
law that fraud vitiates all judicial acts and therefore, delay
cannot be a ground to prevent the actual facts from being
placed before the Court. Since the original Defendant No.4
had obtained an ex-parte decree by suppression of
material facts regarding the auction purchase of Patia
estate, the same amounts to playing fraud with the Court.
Therefore, any sale of land made by him, over which he
has no alienable right, is non-est in the eye of law. This is
a material fact which both the Courts below were not
aware of and therefore, it is the duty of Defendant No.1 to
bring such facts on record. Mr. Baug has cited a judgment
of this Court in the case of Maheswar Naik and others
v. Tikayet Sailendra Narayan Bhanja Deo; A.I.R. (38)
1951, Orissa 327 in support of his contention.
6. Per contra, Mr. Bhuyan would argue that the first
and foremost requirement of an application for
amendment is that the applicant must show exercise of
due diligence in bringing the proposed amendment on
record. In the instant case, nothing has been placed by
the Defendant No.1 to show as to why the proposed
amendment was not introduced earlier. That apart, the
contention that the ex-parte judgment was passed on
suppression of facts is no longer available to be raised in
view of the period of time elapsed. It is settled law that
time barred claims cannot be permitted to be introduced
by way of amendment.
7. I have carefully considered the rival contentions and
have gone through the materials on record. Defendant
No.1 claims that the Patia estate was purchased by Raja
of Kanika as an auction purchaser in 1932 but fact
remains that Defendant No.4 of the original suit was
treated as intermediary on his application filed under
Sections 6 and 7 of the OEA Act at the time of vesting of
the estate. Much water has flown down the bridge ever
since. Since the estate was recorded in the name of the
State Government, the ex-intermediary (defendant No.4)
filed a suit being T.S. No.58/1993 and the same was
decreed by declaring the title of Defendant No.4. Said
decree has never been challenged till date and as such
has become final. As argued by Mr. Bhuyan, the
Defendant No.1 has not placed anything on record to
show as to why the proposed amendment was not sought
to be introduced earlier and is being attempted to be done
at this belated stage. Significantly, Mr. Baug has relied
upon a judgment passed by a division of this Court in the
case of Maheswar Naik (Supra), but the said judgment
was passed in the year 1951. It cannot therefore, be said
that the facts sought to be introduced by way of
amendment were not within the knowledge of defendant
No.1 for all these long years.
8. For the foregoing reasons therefore, this Court is of
the considered view that no ground has been made out to
persuade this Court to allow the application for
amendment of the written statement by Defendant No.1
at this belated stage.
9. Resultantly, the application for amendment is
rejected.
(Sashikanta Mishra)
Judge
Puspanjali
Designation: Junior Stenographer
Location: High Court of Orissa, Cuttack.
Date: 30-Jul-2025 16:23:23
