Orissa High Court
Rupesh Kumar Agrawal vs Priyasha Goenka .... Opposite Party (S) on 28 March, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 04-Apr-2025 18:13:17
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.14411 of 2018
(In the matter of an application under Articles 226 and 227 of the
Constitution of India, 1950).
Rupesh Kumar Agrawal .... Petitioner(s)
-versus-
Priyasha Goenka .... Opposite Party (s)
Advocates appeared in the case through Hybrid Mode:
For Petitioner(s) : Mr. Amit Prasad Bose, Adv.
Along with
Mr. D.J. Sahoo, Adv.
For Opposite Party (s) : Mr. S.J. Biswal, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-24.02.2025
DATE OF JUDGMENT:-28.03.2025
Dr. S.K. Panigrahi, J.
1. The Petitioner, in this Writ Petition, challenges the legality and
propriety of the order dated 24.07.2018 passed by the learned 3rd Motor
Accident Claims Tribunal, Bhubaneswar, in MACT (Misc. Case) No. 17
of 2012. By the said order, the Tribunal rejected the Petitioner's
application under Order VI, Rule 17 of the C.P.C., which sought to
amend his written statement in the proceeding.
Location: ORISSA HIGH COURT, CUTTACK
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
(i) The Opposite Party and her friend, Payal Choudhury, were traveling
towards Master Canteen Square from Sriya Talkies Square when an
accident occurred due to the petitioner's negligent and rash driving.
The impact of the accident threw the Opposite Party a considerable
distance, rendering her unconscious and causing her to sustain severe
head and other injuries. She was immediately taken to Nilachal
Hospital, Unit-3, Kharvel Nagar, Bhubaneswar, and later referred to
Apollo Hospital for further treatment, resulting in significant financial
loss.
(ii) Subsequently, the Opposite Party filed an application before the 3rd
Motor Accidents Claim Tribunal, Bhubaneswar, to claim compensation.
The petitioner appeared and submitted a reply to the show-cause notice
issued by the Tribunal.
(iii) During the trial, the petitioner filed a petition under Order VI, Rule 17
of the CPC, seeking an amendment to his written statement. The
proposed amendments were to insert the phrase "it is not a fact" before
the word "the rider" in paragraph 18, line 7; to add the word "and" after
"Master Canteen Square" in line 14 by deleting the full stop; and to
insert the word "and" after "accident" in lines 15 and 17, while deleting
the full stops.
(iv) The Opposite Party filed an objection to the amendment petition,
arguing that the proposed amendments would alter the nature of the
controversy between the parties, if allowed.
Location: ORISSA HIGH COURT, CUTTACK
(v) The 3rd Motor Accidents Claim Tribunal, Bhubaneswar, passed an order
on 24.07.2018 rejecting the amendment petition. The Tribunal stated
that it is well-settled law that amendments cannot be allowed after the
commencement of the hearing, particularly if they seek to withdraw
admissions made during cross-examination. Consequently, the petition
under Order VI, Rule 17 of the CPC was dismissed as being devoid of
merit.
(vi) Aggrieved by this decision, the petitioner has filed the present writ
petition before this Court.
II. SUBMISSIONS ON BEHALF OF THE PETITIONER:
3. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions:
(i) The Petitioner submitted that in the written statement filed in MACT
(Misc. Case) No. 17 of 2012, certain inadvertent typographical and
clerical errors had occurred. These errors came to the Petitioner's
knowledge during the trial proceedings, and without any undue delay,
the Petitioner filed a petition under Order VI, Rule 17 of the CPC before
the trial court, seeking to amend the erroneous portions.
(ii) The Petitioner contended that the 3rd Motor Accidents Claim Tribunal
arbitrarily and superficially rejected the petition under Order VI, Rule
17 of the CPC on 24.07.2018, thereby prejudicing the interest of the
Petitioner and causing sheer injustice. The Petitioner argued that
allowing the amendment petition would not alter the nature and
character of the written statement. Instead, the rejection of the petition
Location: ORISSA HIGH COURT, CUTTACK
had placed the Petitioner in a position where he was deemed to have
admitted that the opposite party (the Petitioner in the MACT case) was
injured by his vehicle. This, according to the Petitioner, was contrary to
the protection guaranteed under Article 20(3) of the Constitution of
India, which ensures that no person accused of an offense shall be
compelled to be a witness against themselves.
(iii) The Petitioner further contended that the very essence of filing a written
statement and a show-cause reply in a contested matter is to defend
oneself against the allegations and averments made by the petitioner.
When the court compels the opposite party to proceed with an
erroneous written statement, wherein a typographical and clerical error
inadvertently creates an impression of admission to the allegations, it
not only subjects the party to grave injustice but also defeats the very
purpose of ensuring justice.
(iv) Additionally, the Petitioner submitted that since this was a MACT case,
the provisions of Order VI, Rule 17 of the CPC had no direct application.
The Petitioner emphasized that allowing the amendment would serve
the ends of justice. The Petitioner asserted that the proposed
amendment would not alter the nature and character of the case, nor
would it prejudice the opposite party in any manner. Hence, the
amendment should be permitted.
III. SUBMISSIONS ON BEHALF OF THE OPPOSITE PARTIES:
4. The Learned Counsel for the Opposite Parties earnestly made the
following submissions in support of his contentions:
Location: ORISSA HIGH COURT, CUTTACK
(i) The Motor Vehicles Act, 1988, does not contain any provision for the
amendment or alteration of replies to show-cause notices or petitions
filed by the parties. However, despite this, the Petitioner has sought to
amend the written statement by invoking Order VI, Rule 17 of the Code
of Civil Procedure, 1908.
(ii) The proviso to Order VI, Rule 17 of the Code of Civil Procedure, 1908,
stipulates that after the commencement of the trial, an amendment can
only be allowed if the Petitioner demonstrates that, despite due
diligence, they could not have sought the amendment earlier. In the
present case, the petition filed under Order VI, Rule 17 by the Petitioner
does not contain any explanation regarding due diligence or why the
amendment was not sought before the commencement of the trial. The
objection to the amendment petition clearly stated that the Petitioner
failed to provide any justification for not filing the amendment request
at an earlier stage.
(iii) The amendment sought by the Petitioner would fundamentally alter the
nature and character of the case. If allowed, it would amount to the
introduction of an entirely new case, thereby changing the original
defense taken in the written statement.
(iv) The petition for amendment was filed nearly six years after the initiation
of proceedings before the 3rd Motor Accidents Claims Tribunal,
Bhubaneswar. The Petitioner has failed to provide any justification for
this prolonged delay in seeking the amendment.
Location: ORISSA HIGH COURT, CUTTACK
(v) Reliance was placed on the case of Ram Niranjan Kajaria v. Sheo
Prakash Kajaria1, wherein the Supreme Court held that admissions
made in pleadings cannot be withdrawn through an amendment
petition filed under Order VI, Rule 17 of the Code of Civil Procedure,
1908.
(vi) The inevitable conclusion drawn is that no amendment can be
permitted after the commencement of trial merely at the whims of the
Petitioner, especially in the absence of a proper explanation
demonstrating due diligence. The law protects those who are vigilant
about their rights, and in this case, the Petitioner's inordinate delay in
filing the amendment application before the commencement of trial
goes against the principles of equity. This delay inherently undermines
the equitable doctrine, thereby necessitating the rejection of this writ
petition. This Court should be reluctant to entertain a delayed
amendment application that seeks to withdraw an admission already
made by the Petitioner, as it would unduly prejudice a diligent litigant
like the Opposite Party.
IV. COURT'S REASONING AND ANALYSIS:
5. Heard the learned counsel for the Parties and perused the materials
placed on record.
6. The issue before this Court is whether the petitioner's application for
the amendment of the written statement can be allowed under Order
(2015) 10 SCC 203.
Location: ORISSA HIGH COURT, CUTTACK
VI, Rule 17 of the Code of Civil Procedure, 1908, despite the
commencement of the proceedings.
7. The principles regarding the amendment of pleadings are well settled.
Order VI, Rule 17 of the Code of Civil Procedure, 1908, allows the
amendment of pleadings at any stage of the proceedings, but such
amendments are subject to certain conditions. The key considerations
are whether the amendment will cause injustice or prejudice to the
opposite party, and whether the amendment is necessary for the
purpose of determining the real questions in controversy between the
parties.
8. The Supreme Court in North Eastern Railway Administration,
Gorakhpur v. Bhagwan Das2 observed that Order 6 Rule 17 Code of
Civil Procedure, 1908 allows amendments at any stage of the
proceedings. The Court, relying on Pirgonda Hongonda Patil v.
Kalgonda Shidgonda Patil3 observed that all amendments should be
allowed if they satisfy two conditions:
a. of not working injustice to the other side, and
b. of being necessary for the purpose of determining the real
questions in controversy between the parties.
It was observed that amendments should be refused only where the
other party cannot be placed in the same position as if the pleading had
been originally correct, but the amendment would cause him an injury
which could not be compensated in costs.
(2008) 8 SCC 511.
1957 SCR 595.
Location: ORISSA HIGH COURT, CUTTACK
9. In Rajesh Kumar Aggarwal and Others v. K.K. Modi & Others4, the
Supreme Court clarified that the purpose of Order VI, Rule 17 of the
CPC is to ensure that the merits of the case are addressed. Amendments
should be allowed when necessary to resolve the real issue in
controversy, provided they do not cause injustice or prejudice to the
opposite party. The rule is divided into two parts: the first part is
discretionary, leaving it to the court to allow amendments, while the
second part is mandatory, requiring the court to allow amendments that
are essential for resolving the real issues.
10. However, it is imperative to note that the proviso to Rule 17 provides
that no application for amendment shall be allowed after the
commencement of the trial unless the Court concludes that the party
could not have raised the matter before the trial despite exercising due
diligence.
11. In Life Insurance Corporation of India v. Sanjeev Builders Pvt. Ltd.5,
the Supreme Court further expounded on the principles governing the
amendment of pleadings. The relevant portion of the judgment is
quoted below:
"71.2 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 6 Rule 17CPC.
71.3 The prayer for amendment is to be allowed:
(2006) 4 SCC 385.
(2022) 16 SCC 1.
Location: ORISSA HIGH COURT, CUTTACK
71.3.1 If the amendment is required for effective and proper
adjudication of the controversy between the parties.
71.3.2. 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 do not
seek to withdrawany 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).
71.4. A prayer for amendment is generally required to be
allowed unless:
71.4.1. 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.
71.4.2. The amendment changes the nature of the suit.
71.4.3. The prayer for amendment is mala fide, or
71.4.4. By the amendment, the other side loses a valid defence.
71.5. 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.
71.6. Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the prayer for amendment should
be allowed.
71.7. Where the amendment merely sought to introduce an
additional or a new approach without introducing a time-
barred cause of action, the amendment is liable to be allowed
even after expiry of limitation.
Location: ORISSA HIGH COURT, CUTTACK
71.8. Amendment may be justifiably allowed where it is
intended to rectify the absence of material particulars in the
plaint.
71.9. Delay in applying for amendment alone is not a ground
to disallow the prayer. Where the aspect of delay is arguable,
the prayer for amendment could be allowed and the issue of
limitation framed separately for decision.
71.10. Where the amendment changes the nature of the suit
or the cause of action, so as to set up an entirely new case,
foreign to the case set up in the plaint, the amendment must
be disallowed. Where, however, the amendment sought is
only with respect to the relief in the plaint, and is predicated
on facts which are already pleaded in the plaint, ordinarily
the amendment is required to be allowed.
71.11. Where the amendment is sought before
commencement of trial, the court is required to be liberal in
its approach. The court is required to bear in mind the fact
that the opposite party would have a chance to meet the case
set up in amendment. As such, where the amendment does
not result in irreparable prejudice to the opposite party, or
divest the opposite party of an advantage which it had secured
as a result of an admission by the party seeking amendment,
the amendment is required to be allowed. Equally, where the
amendment is necessary for the court to effectively adjudicate
on the main issues in controversy between the parties, the
amendment should be allowed. (See Vijay
Gupta v. Gagninder Kr. Gandhi.)"
12. This Court must now determine whether the amendment of the
pleading should be allowed in light of the admission made in the
written statement. The record of the 3rd MACT reveals that paragraph
18 of the written statement contains an admission by the Petitioner of
causing the accident due to rash and negligent driving. Allowing the
Location: ORISSA HIGH COURT, CUTTACK
proposed amendment would enable the Petitioner to withdraw this
admission and rectify any deficiencies in its defence, which could
substantially alter the course of the case. This raises a significant issue,
as such amendments are generally not permitted after the
commencement of the hearing, when they involve withdrawing
admissions made during cross-examination.
13. In the present case, the Petitioner cannot reasonably claim ignorance of
its own pleading, particularly when the case has been pending for an
extended period of six years before the Third MACT. This prolonged
delay underscores the fact that the Petitioner was fully aware of the
contents of its own written statement, including the admission made in
paragraph 18, where the Petitioner acknowledged causing the accident
due to rash and negligent driving. The lapse of such a significant
amount of time cannot be overlooked, as it indicates that the Petitioner
had ample opportunity to address any discrepancies or errors in its
pleading long before the amendment request was made.
V. CONCLUSION:
14. In light of the foregoing discussion, and considering the well-settled
legal principles regarding amendments under Order VI, Rule 17 of the
CPC, this Court finds no merit in the Petitioner's Writ Petition. The
amendment sought by the Petitioner is not permissible under the
circumstances, particularly in light of the admission made in the written
statement. Allowing the amendment at this stage would enable the
Location: ORISSA HIGH COURT, CUTTACK
Petitioner to withdraw the admission made earlier, which could
substantially prejudice the Opposite Party.
15. Accordingly, the Writ Petition stands dismissed.
16. Interim order, if any, passed earlier stands vacated.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 28th March, 2025
