Orissa High Court

Harijit Singh And Another vs Raj Kaur And Others .... Opposite ... on 15 October, 2025

Author: B.P. Routray

Bench: B.P. Routray

Signature Not Verified
Digitally Signed
Signed by: CHITTA RANJAN BISWAL
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 22-Oct-2025 11:08:57


                                       IN THE HIGH COURT OF ORISSA AT CUTTACK

                                                     CMP No.408 of 2025
                         (In the matter of an application under Article 227 of the Constitution
                         of India)

                           Harijit Singh and another                ....                 Petitioners

                                                             -versus-


                           Raj Kaur and others                      ....         Opposite Parties
                         Advocate(s) appeared in this case:-

                                   For Petitioners               : Mr.T.K.Mishra, Advocate

                                   For Opposite Parties          : Mr.A. Sarangi, Advocate
                                                                   (For O.P.No.1 & 2)


                                        CORAM: JUSTICE B.P. ROUTRAY
                                                        JUDGMENT

th 15 October, 2025

B.P. Routray, J.

1. Heard Mr. T.K. Mishra, learned counsel for the Petitioners and

Mr. A. Sarangi, learned counsel for Opposite Parties 1 & 2.

2. Present CMP is directed against the order dated 17th February

2025 of learned Senior Civil Judge, Rourkela passed in C.S.No.162 of

2017, wherein the prayer for amendment of the written statement filed

on behalf of defendants No.1 & 2 has been rejected.

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

3. The plaintiffs, who are present Opposite Parties 1 & 2, have

filed C.S.No.162 of 2017 praying for reliefs to declare RSD dated 18th

May 2010 as null and void on the ground of fraud as well as the

Power of Attorney dated 28th January 2005. They have further prayed

for other consequential reliefs including correction in the ROR and

eviction of defendants No.1 & 2 from the suit house.

4. Defendants No.1 & 2 appeared in the suit and contested by

filing their written statement as per Annexure-2. The suit proceeded

and the witnesses were examined from the side of the plaintiffs. After

closure of evidence from the side of the plaintiffs, a petition dated 5th

April 2024 was filed by defendants No.1 & 2 praying to amend the

written statement filed by them. It is stated in the petition (Annexure-

3) that after change of the counsel for defendants No.1 & 2, they came

to know that the previous counsel has not drafted the written

statement according to their instructions and omitted to deny certain

facts mentioned in the plaint which are completely false. It is further

stated that upon engaging the new counsel after commencement of

hearing, the defendants feel it appropriate to amend the written

statement and as such, no fault can be attributed on their part for the

delay in bringing such amendment.

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

5. Learned trial court rejected the prayer for amendment mainly

on the ground that defendants no.1 & 2 have failed to justify due

diligence on their part in bringing the amendment to the written

statement and moreover, certain admissions made in the written

statement are now sought to be withdrawn by way of the present

amendment.

6. Mr.Mishra, learned counsel for the Petitioners submits that

defendants No.1 & 2 having not aware of such omissions committed

in the written statement filed by them could not bring the amendment

before commencement of the trial of suit and they only came to know

about the same upon engaging a new counsel to conduct the case on

their behalf. It is denied on behalf of the Petitioners (defendants No.1

& 2) that they never seek to alter the admissions made in the written

statement since from the very beginning it is their consistent defence

that late Ranjit Singh died as a bachelor and the plaintiffs are neither

his wife nor sons.

7. Mr.Sarangi, learned counsel for Opposite Parties 1 and 2

submits that when the amendment sought for after commencement of

hearing, it is imperative on the part of the defendants to explain the

delay caused on their part in bringing such amendments and secondly,

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

the defendants cannot be permitted to alter or withdraw their

admissions made in the original written statement upon change of the

counsel on their part.

8. The principles relating to amendment as per the provisions

under Order 6 Rule 17, CPC has been explained in Life Insurance

Corporation of India vs. Sanjeev Builders Pvt. Ltd & Anr., 2022

SCC Online SC 1128. In the said report, it has been observed as

follows:-

"71. Our final conclusions may be summed up thus:

71.1. Order 2 Rule 2CPC 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 2 Rule 2CPC is, thus, misconceived and hence negatived.

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:

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,

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

(b) by the amendment, the parties seeking amendment do 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).

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.

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.

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

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. Gaginder Kr. Gandhi.)"

9. It is true that the proposed amendment sought for by the

defendants includes denial of the fact that the plaintiffs and defendants

No.3 to 6 are strangers to the family of Ranjit Singh and they are not

residing in the house existing over the suit land, i.e. plot No.215/1601

under khata No.269/200 of mouza-RPU No.36. It is further denied in

the proposed amendment that neither the plaintiffs nor the defendants

No.3 to 6 became the owner of the suit property by inheritance upon

death of Ranjit Singh as they are no way related to Ranjit Singh. The

suit land is claimed to be an ancestral property of Ranjit Singh and

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

defendant No.1 is his brother and both are sons of late Harbhajan

Singh.

10. What is seen from paragraph - 1 of the original written

statement that except the fact that plaintiffs No.1 & 2 along with

defendants No.3 to 5 being unknown to the family of Harbhajan

Singh, rest part of the pleadings made in paragraph-1 of the plaint

have been admitted. Therefore, as reveals from paragraph-1 of the

plaint, the averment of the plaintiffs with regard to their stay over the

suit house as their residence since the time Ranjit Singh was alive,

have been admitted on the part of defendants No.1 & 2 including the

fact of existence of a shop room over the suit land. Therefore, it is

clear that by way of amendment defendants No.1 & 2 seek to

withdraw their earlier admissions regarding the residence of plaintiffs

and defendants No.3 to 5 over the suit land and suit house. Besides,

though it is stated at paragraph-3 of the written statement that Ranjit

Singh died bachelor without leaving any legal heir, but it was stated at

paragraph-6 of the written statement that the facts stated in paragraph-

6 of the plaint are admitted. This gives an assumption about plaintiff

No.1 that she as the wife of late Ranjit Singh had applied for

correction in the ROR. This part of the admission as made under

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

paragraph-6 of the written statement is now sought to be withdrawn

and altered in the proposed amendment denying the relationship of the

plaintiffs and defendants no.3 to 5 with late Ranjit Singh.

11. Hon'ble Supreme Court in Ram Nirajan Kajaria vs- Jugal

Kishore Kajaria, (2015) 10 SCC 203, have stated that categorical

admissions made in the pleadings cannot be permitted to be

withdrawn by way of amendment. It is observed as follows;

"23. We agree with the position in Nagindas Ramdas [(1974) 1 SCC 242] and as endorsed in Gautam Sarup [Gautam Sarup v. Leela Jetly, (2008) 7 SCC 85] that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. To that extent, the proposition of law that even an admission can be withdrawn, as held in Panchdeo Narain Srivastava [Panchdeo Narain Srivastava v. Jyoti Sahay, 1984 Supp SCC 594] , does not reflect the correct legal position and it is overruled.

24. However, the admission can be clarified or explained by way of amendment and the basis of admission can be attacked in substantive proceedings. Xx .. xx .. xx .."

12. It is true that in the instant case, the proposed amendment

sought to be incorporated is at the stage when the plaintiffs have

completed their evidence. It is seen from the petition under

Annexure-3 that while seeking for amendment to the written

statement nothing has been stated by defendants No. 1 & 2

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

explaining their cause for delay in bringing such amendments to the

written statement. The proviso to Order 6 Rule 17, CPC speaks for

exercise of due diligence on the part of a party seeking amendment

after commencement of trial. It is now well settled that in a civil suit

upon framing of issues the trial has commenced. In M.Revanna

vrs. Anjanamma, (2019) 4 SCC 332, it is stated by the Hon'ble

Supreme Court that the burden is on the party, who is seeking

amendment, to explain due diligence on his part. It has been

observed as follows:-

"7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money."

13. When the petition seeking amendment by defendants No.1 &

2 does not speak any reason for exercising due diligence on their

part of bringing such amendments after commencement of trial, it

can be certainly opined that defendants No.1 & 2 have failed in their

duty to satisfy the Court that despite due diligence on their part, they

were unable to bring the amendment in time. The present suit is now

at the stage of adducing evidence from the side of the defendants

and the statement made in the petition for amendment that by

change of a new counsel, the defendants were unable to perform due

diligence on their part cannot be an accepted factor to accept their

prayer for amendment to the written statement. A Single Bench of

the Allahabad High Court, in Mahendra Pratap Singh vrs. Rama

Raman and others, 2024 SCC OnLine All 2510, have stated that,

"15. Another issue taken by the revisionist is about change of counsel. This issue was very well considered by this Court in the matter of Hari Shanker v. Bhawati Prasad Mishra; reported in 2014 (0) Supreme (All) 3127 and Shri Firoz Uddin v. Anwar Uddin (Matters under Article 227 No. 5213 of 2013). Relevant paragraph of the judgment passed in Hari Shanker (supra) is quoted hereinbelow:--

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

"14. Supreme Court again in J. Samuel v. Gattu Mahesh, (2012) 2 SCC 300, held that due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. A party requesting a relief stemming out of a claim is required to exercise due diligence and it is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit. In the given facts, there is a clear lack of "due diligen not search out the fact, which is to be amended in written statement. Therefore, the condition of due diligence could not be satisfied. Law is very ce" and the mistake committed certainly does not come within the preview of a typographical error. Similar view was taken in Vidyabai v. Padma Latha, (2009) 2 SCC 409, Sushil Kumar Jain v. Manoj Kumar, (2009) 14 SCC 38 and Abdul Rehman v. Mohd. Ruldu, (2012) 11 SCC 341.

15. The written statement was drafted by an advocate after reading the plaint. After legal advice, it cannot be said that in exercise of "due diligence" the

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

fact sought to be brought in the pleading by way of amendment was not in the knowledge of the defendant. A distinction has to be drawn between 'due diligence' and 'negligence'. The case of the defendants falls in the category of 'negligence' and not 'due diligence'. Trial Court rightly rejected the amendment application, as Proviso to Order VI Rule 17 CPC, now castes a rider on the power of the Court in allowing amendment application."

16. Again, similar issue was considered by this Court in the matter of Shri Firoz Uddin (supra). Relevant paragraph of the said judgment is quoted hereinbelow:--

"20. So far as present case is concerned, there is no dispute on the point that except the engagement of new counsel, nothing has been stated in amendment application even after sincere efforts, they could not search out the fact, which is to be amended in written statement. Therefore, the condition of due diligence could not be satisfied. Law is very much settled that change of counsel cannot be a ground for filing amendment. Therefore, no interference is required in the impugned order dated 11.04.2023."

17. This issue was also considered by this Court in the matter of Rama Nand (Supra), in which Court has held that change of counsel cannot be a ground to file amendment application. Relevant paragraph of the said judgment is quoted below:--

"Having heard Sri. Shiv Nath Singh the facts of this case leaves no room for doubt, that the petitioners who are the defendants were duly represented by a lawyer for the past several years, who consciously made an

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

endorsement on 30.10.2007 that he does not want to file any additional written statement. The evidence was led thereafter and the witnesses were cross-examined. It is after some new lawyer who was engaged at the time of hearing that dawned on the petitioners that a mistake has been committed by not filing an additional written statement. The mistake of the lawyer of the petitioners as alleged, in my opinion, is not a mistake at all. It was a conscious endorsement by the lawyer not to file an additional written statement. Apart from this, the evidence with regard to the plea raised in the amended plaint has been adduced by the defendants. Thus, they cannot plead either mistake on behalf of the lawyer or on their behalf also. The petitioners cannot be permitted to raise a plea that their lawyer on a wrong advise made the endorsement. If this is condoned, then in every case a litigant will unscrupulously come forward with this plea and get the case reopened on one pretext or the other. The subsequent engagement of a counsel who has a better understanding of law cannot be a ground to plead that the earlier counsel was incompetent, particularly, in this case where an endorsement in writing has been made by the lawyer that he does not wish to file any additional written statement."

18. In the light of law laid down by the Courts, change of counsel cannot be a ground to file amendment application bypassing the rigorous conditions of due diligence. In fact, to meet out any mistake, no advantage can be given to litigant due to change of counsel."

Signed by: CHITTA RANJAN BISWAL

Location: Orissa High Court, Cuttack Date: 22-Oct-2025 11:08:57

14. In the given facts of the present case, the amendment sought

for by defendants no.1 & 2 cannot be permitted for the reason that,

first, they sought to withdraw/alter certain admissions made in the

original written statement and secondly, they have failed to justify

the exercise of due diligence on their part in bringing the

amendment.

15. In the result, the CMP is dismissed and the impugned order is

confirmed. However, any such observation made in this judgement

shall not affect the decision on the merits of suit.

( B.P. Routray) Judge