[Cites 2, Cited by 0]
Orissa High Court
Smt. Sarala Nayak And Others vs Smt. Kunjalata Pati And Others ..... ... on 24 February, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.187 of 2026
Smt. Sarala Nayak and others ..... Petitioners
Represented by Adv. -
Gopal Prasad Jena
-versus-
Smt. Kunjalata Pati and others ..... Opposite Parties
Represented by Adv. -
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
24.02.2026
Order No.
01. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioners. Perused the CMP
application as well as the prayer made therein.
3. By filing the present application under Article 227 of the
Constitution of India, the plaintiff in C.S. No.30 of 2005 pending in
the court of learned Civil Judge Sr. Division, Nilgiri has approached
this Court challenging order dated 17.05.2025 at Annexure-10 to the
present application, whereby the learned trial Court has rejected the
application of the Petitioners filed under Order 6 Rule 17 of the CPC
seeking amendment of the plaint on the grounds stated on such
application.
4. Learned counsel for the Petitioners at the outset contended
that the Petitioners as plaintiff filed the suit for specific performance
of contract. He further emphatically argued that the trial of the suit
has not commenced yet as because after filing of the suit the matter
was carried to this Court and by order of this Court, the further
proceeding of the suit remained stayed for several years. Finally,
when the matter was relegated back to the trial Court, the Corona-19
pandemic intervened and as a result of which the trial has not
commenced yet. During the pendency of the suit an application was
filed on 16.04.2025 at the instance of the plaintiff-Petitioners under
Order 6 Rule 17 of the CPC seeking amendment to the plaint on the
ground that the suit scheduled properties have been partition among
the co-sharers by virtue of a decree passed in C.S. No.44 of 2005.
Since the amendment sought for is required for a just decision of the
case, such application was filed at the instance of the plaintiff
seeking amendment of the plaint. However, the learned trial Court
has rejected the prayer for amendment only on the ground that the
suit is pending for 18 years and that the proposed amendment not at
all required for a just adjudication of the suit and that if the
amendment is allowed the same will change the nature and character
of the suit.
5. Upon perusal of the impugned order dated 17.05.2025 at
Annexure-10, this Court observes that the application of the
Petitioner for amendment of the suit has been rejected by the learned
trial Court on the grounds stated therein. The learned trial Court
rejected the prayer of the Petitioners for amendment basically on the
ground that the application for amendment was filed at a belated
stage, such amendments are not required for a just adjudication of
the suit and that if such amendments are allowed, the same will
change the nature and character of the suit.
6. On a careful consideration of the factual background of the
present case as well as the submission made by the learned counsel
for the plaintiff-Petitioners, this Court found that during pendency of
the present suit the suit properties were partition by virtue of a
decree of the Civil Court. Therefore, the plaintiff-Petitioners could
not have pleaded the same in his plaint at the time of filing of the
suit. No doubt, there is a long delay in disposal of the suit, however,
the same was due to various factors including the interim order
passed by this Court for which the suit remain stayed for several
years. Moreover, this Court is of the considered view that delay
alone cannot defeat justice and take away the valuable right of the
Petitioners to amend the pleading.
7. This Court is also conscious of the fact that after amendment
of the CPC in the year 2002 the scope and jurisdiction of the Court
under Order 6 Rule 17 of the CPC has been restricted and that before
allowing such amendment the Court has to apply the due diligence
test. Here in the instance case, it is stated by the learned counsel for
the Petitioner the trial has not commenced yet. Thus, this Court is of
the prima facie view that the proviso requiring for due diligence test
under Order 6 Rule 17 of the CPC would not be applicable to the
facts of the present case. Moreover, a fair adjudication requires that
ample opportunity be provided to both sides to file their pleadings
before the trial commences in the suit.
8. While amending the CPC in the year 2002 the Legislatures
have understood the relevance and significance of the provision in
the nature under Order 6 Rule 17 of the CPC empowering the parties
to carry amendment in their respective pleadings. Such provision
was never deleted by way of amendment at a belated stage in the
year 2002 and that the same was incorporation in the statute
consciously. It is also a settled position of law that if any prayer is
made before the learned trial Court at a belated stage which is likely
to cause some prejudice to the other side, the learned trial Court is
first required to examine the relevance of such prayer before the trial
Court and in the event the learned trial Court comes to a conclusion
that some prejudice is likely to be caused to the other side in the
event such prayer is allowed at a belated stage, then the same can
very well be compensated by imposing cost on the party who has
approached the Court at a belated stage.
9. Merely, approaching the Court, at a belated stage alone itself,
cannot take away the rights of the parties who have approached the
Court seeking a relief under the statutory provision. The learned trial
Court is required to examine as to whether the amendment sought
for by the plaintiff is just proper and the same is required for a just
adjudication of the suit pending before it. The learned trial Court is
also required to examine as to whether refusal to permit amendment
to the plaint would cause prejudice to the plaintiff or not. It is also
the duty of the trial Court to apply the due diligence test as provided
in the proviso to Order 6 Rule 17 of the CPC after amendment in the
year 2002.
10. Keeping in view the aforesaid settled principle of law, this
Court examine the impugned order dated 17.05.2025 passed in C.S.
No.30 of 2005 by the learned trial Court. On such examination, it is
found that the learned trial Court has not indicated as to how the
Opposite Parties will be prejudiced in the event the amendment is
allowed. Moreover, it has also not been clearly indicated as to why
the amendment sought for is not relevant for a just adjudication of
the suit. In view of the aforesaid anomaly, this Court is of the view
that the matter requires reconsideration by the learned trial Court.
Accordingly, the impugned order dated 17.05.2025 is hereby set
aside.
11. Further, the matter is relegated back to the learned trial Court
for reconsideration. Taking into consideration the fact that the suit is
pending since 2005, the Petitioner shall approach the learned trial
Court along with a certified copy of today's order within two weeks
from today. In such eventuality, the learned trial Court after
providing opportunity to both sides shall make every endeavor to
dispose of the application under Order 6 Rule 17 of the CPC within
four weeks thereafter. Further, considering the fact that the suit is of
the year 2005, every endeavor shall be made by the learned trial
Court to expedite the trial and conclude the same as expeditiously as
possible. The parties to the suit are directed to cooperate with the
learned trial Court for an early disposal of the suit and they shall not
ask for any unnecessary adjournments in the present suit.
12. Since this order is being passed at the stage of admission
without hearing the opposite parties, liberty is granted to the
opposite parties to seek for variation or modification of this order in
the event it is found that the Petitioners have suppressed any
material fact before this Court.
13. With the aforesaid observation/direction, the CMP application
stands disposed of.
( Aditya Kumar Mohapatra )
Judge
S.K. Rout
Location: High Court of Orissa, Cuttack
