[Cites 3, Cited by 0]
Orissa High Court
Sumati Behera & Ors vs Bairagi Behera & Anr. ..... Opposite ... on 6 March, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.922 of 2025
Sumati Behera & Ors. ..... Petitioners
Represented by Adv. -
Biswajit Mohapatra
-versus-
Bairagi Behera & Anr. ..... Opposite Parties
Represented by Adv. -
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
Order No. 06.03.2026
04. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Petitioner. Perused the CMP
application as well as the prayer made therein.
3. On perusal of the order sheet, it appears from order dated
23.09.2025 that despite valid service of notice on Opposite Party
Nos.1 & 2, none appears on behalf of such Opposite Parties.
4. By filing the present CMP application under Article 227 of the
Constitution of India, the Plaintiff in C.S. No.547 of 2012 pending
before the 3rd Addl. Sr. Civil Judge, Balasore has approached this
Court challenging order dated 07.04.2025, whereby the plaintiff's
prayer under Order 6 Rule 17 for amendment of the plaint has been
rejected.
5. Learned counsel for the Petitioner at the outset contended that
initially the Petitioner as plaintiff filed a suit with a prayer for
demarcation and for permanent injunction over the suit scheduled
"A" property. It has been alleged that during pendency of the present
suit the Opposite Parties, who are the absolute owner of "B"
scheduled property, with the help of some antisocials encroached
upon a portion of the suit scheduled "A" land belonging to the
plaintiff on 20.05.2025 towards the west side of Plot No.245, under
khata No.85 of Mouza Kantapada. It has also been alleged that the
defendants have illegally made pucca construction on a portion of the
suit scheduled "A" land belonging to the plaintiffs. Learned counsel
for the Petitioner further contended that in view of the subsequent
development, the plaintiff filed an application with a prayer for
amendment of the plaint to the effect that he wanted alteration in the
prayer for demarcation by a prayer for recovery of possession. Such
prayer having been rejected by the learned trial court, the Petitioner
has approached this Court by filing the present CMP application.
6. Perused the impugned order dated 07.04.2025 at Annexure-3
to the CMP application. On a close scrutiny of the order dated
07.04.2025, it appears that the learned trial court upon a due
consideration of the application of the Petitioner under Order 6 Rule
17 of the CPC has held that such amendment could not have been
allowed after commencement of the trial of the suit unless the Court
is satisfied with regard to due diligence as has been prescribed in the
prviso to Order 6 Rule 17 of the CPC. The learned trial court has also
referred to the judgment of this Court in Bajaj Allianz General
Insurance Company Ltd. vs. District Judge-cum-First MACT,
Balasore reported in 2016 (1) OLR 116. Reference has also been
made to the judgment in the case of Smt. Basanti Satpathy and
others vs. Rakesh Kumar Satpathy reported 2003 (1) OLR 516. As
such, no doubt the suit in the year 2012 and that the plaintiff had filed
an application under Order 39 Rule 7 of the CPC on 26.03.2013, the
learned trial court has also taken a note of allegation made by the
plaintiff i.e. with regard to the collusion of the Defendants with some
antisocials to encroach upon the suit scheduled "A" land. Finally, the
learned trial court has come to a conclusion that such an amendment
is not fit to be introduced at that stage when the evidence on the side
of the plaintiff has already been commenced. Accordingly, the prayer
for amendment was rejected.
7. A a close scrutiny of the impugned order dated 07.04.2025,
gives an impression that the learned trial court was guided by the
principle that no amendment shall be allowed after trial commences,
in view of the amendment to the CPC in the year 2002. Accordingly,
the application of the Petitioner for amendment has been rejected. On
a careful analysis of the impugned order, this Court at this stage it
would like to observe that Order 6 Rule 17 does not create an
absolute embargo with regard to the maintainability of an application
seeking amendment of the pleading by either party. However, the
right to seek for such amendment has been restricted once the trial
commences. Further, the proviso appended to Rule 17 gives an
window to the parties to seek for amendment of the pleadings subject
to the satisfaction of the Court with regard to the due diligence
exercised by the parties. Thus, it is only in the event where despite
due diligence the parties were not in a position to know about the
facts which are relevant for a just adjudication of the suit, the party
shall be entitled to amend their pleading and bring such facts on
record. A plain reading of Order 6 Rule 17 of the CPC does not
create any ambiguity with regard the applicability of such provision.
8. Reverting back to the present case, it appears that the plaintiff-
Petitioner has categorically stated in his application is that on
application for amendment under Order 6 Rule 17 was filed during
the pendency of the suit to the effect that the defendants with the help
of some antisocials have encroached upon a portion of the suit
scheduled "A" land to the extent of 15 Kadi. Thus, the Petitioner
could not have pleaded such fact at the time of filing of the suit and
no such prayer could have been made at the first instance. In the
event the amendment is not allowed, the only alternative left to the
plaintiff is to file a separate suit again with a prayer for recovery of
the possession. The same would not only lead to multiplicity of the
proceedings, but also create a possibility of the litigation being
unnecessarily dragged between the two sides. On a careful
consideration of the impugned order, this Court is of the view that the
learned trial court has lost sight of the aforesaid important aspects of
the law. On a careful analysis of the surrounding facts and
circumstances on which the application for amendment has been
filed, this Court is of the considered view that the plaintiff has
successfully satisfied the duly diligence test as is required under the
proviso to Order 6 Rule 17 of the CPC.
9. In view of the aforesaid analysis of the factual as well as the
legal position, this Court has no other alternative than to set aside
side the impugned order dated 07.04.2025 under Anenxure-3.
Accordingly, the same is hereby set aside. Further, the prayer of the
petitioner seeking amendment of the plaint is allowed, subject to
Petitioner paying a cost of Rs.1000/- to the defendants. Furthermore,
taking into consideration the fact that the suit is of the year 2012, this
Court directs the learned trial court to make every endeavour to
expedite the trial and to conclude the same as expeditiously as
possible, preferably within a period of one year from the date of
communication of a copy of today's order. Parties are directed to
cooperate with the learned trial court for an early conclusion of the
trial.
10. With the aforesaid observation and directions, the present CMP
application stands disposed of.
( A.K. Mohapatra)
Judge
Rubi
