Suraj Singh Sahu vs ) Gundichabati Gouda ..... Opposite ... on 30 March, 2026

Author: Aditya Kumar Mohapatra

Bench: Aditya Kumar Mohapatra

                  IN THE HIGH COURT OF ORISSA AT CUTTACK
                              CMP No.519 of 2026
            Suraj Singh Sahu             .....        Petitioner
                                                              Represented by Adv. -
                                                              Subrat Satpathy

                                           -versus-
            1) gundichabati gouda                     .....        Opposite Parties
            2) mohan gouda                                      Represented by Adv. -
            3) ganesh gouda
            4) phuldhar gouda                                   Mr. Tukuna Mishra
            5) duryodhan gouda
            6) debo gouda
            7) domuni gouda
            8) gorimani gouda
            9) udanti gouda
            10) damayanti gouda
            11) nila gouda @ nayak
            12) usha gouda
            13) laxmi gouda
            14) kamala gouda

                                   CORAM:
                    MR. JUSTICE ADITYA KUMAR MOHAPATRA

                                           ORDER

30.03.2026 Order No.

01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. Heard learned counsel for the Petitioner as well as learned counsel appearing for the Opposite Parties on his own motion without notices being issued by this Court. Perused the CMP application as well as the prayer made therein.

3. By filing the present CMP application under Article 227 of the Constitution of India, the Defendant in the suit bearing C.S.

No.16 of 2022 pending in the Court of learned Civil Judge (Senior Division), Umerkote in the district of Nabarangpur has approached this Court thereby challenging order dated 13.02.2026 passed by the abovenamed Court. By virtue of the impugned order dated 13.02.2026 at Annexure-1, the learned trial Court has rejected the Defendant's application under Order 6 Rule 17 for amendment to the written statement.

4. Learned counsel for the Petitioner-Defendant at the outset contended that initially the Plaintiff-Opposite Party has filed a suit for declaration of right, title and interest and for other ancillary relief. The suit was decreed and thereafter an appeal was carried to the first appellate Court which was registered as RFA No.11 of 2025. After hearing learned counsels appearing for the respective Parties in the pending appeal, the learned Appellant Court i.e. the Additional District and Sessions Judge, Umerkote in RFA No.11 of 2025 vide its judgment dated 24.01.2026 remanded the matter back to the learned trial Court thereby permitting the Defendant to adduce additional evidence. After the remand the suit was reopened. Pursuant to the judgment dated 24.01.2026 the Defendant filed the additional documents along with an application under Order 6 Rule 17 for corresponding amendment to the written statement to incorporate the additional evidence which were earlier not available with them.

5. In course of his argument, learned counsel for the Petitioner referred to the judgment dated 24.01.2026 of the learned First Appellate Court at Annexure-2 and submitted before this Court that while permitting the Defendant to adduce additional evidence, the learned First Appellate Court has discussed the due diligence

in detail. He further referred to the discussion made by the learned Appellate Court in its judgment at Annexure-2 at Para-12 and 13 of the judgment. Learned counsel for the Petitioner referring to the discussion made by the learned First Appellate Court in Para-12 of the judgment contended before this Court that the test of due diligence has already been applied by the learned Appellate Court and after convincing itself with regard to the due diligence shown by the Defendant-Petitioner, the learned First Appellate Court has allowed the prayer of the Defendant to adduce additional evidence and consequentially the judgment of the learned trial Court was set aside and the Defendant has been permitted to adduce additional evidence.

6. At the stage of adducing additional evidence the Petitioner- Defendant moved an application under Order 6 Rule 17 of CPC with a prayer for making corresponding amendment to the pleadings in the W.S. to incorporate the additional evidence. Such application having been rejected vide the impugned order dated 13.02.2026 only on the ground that such application was filed belatedly and that the Petitioner has failed to satisfy the test of due diligence and being aggrieved by such rejection of his application under Order 6 Rule 17 of CPC, the Defendant has approached this Court by filing the present CMP application.

7. Learned counsel for the Opposite Party-Plaintiff on the other hand contended that the learned trial Court has not committed any illegality in rejecting the prayer of the Petitioner for amendment of the W.S. vide its order dated 13.02.2026. While supporting the impugned order at Annexure-1, learned counsel for the Opposite Party-Plaintiff contended before this Court that

initially the suit was disposed of by passing an elaborate judgment and decree. Thereafter the Petitioner-Defendant preferred an appeal and the learned Appellate Court vide its judgment dated 24.01.2026 in RFA No.11 of 2025 remanded the matter to the learned trial Court permitting the Petitioner to adduce additional evidence. He further contended that no such prayer was ever made before the learned Appellate Court with regard to amendment of the W.S.

8. Learned counsel for the Opposite Party further submitted that there was no direction by the learned Appellate Court permitting the Defendant to amend the written statement. In such view of the matter, learned counsel for the Opposite Party contended that the learned trial Court has not committed any illegality and that he has obeyed the judgment of the First Appellate Court in its letter and spirit. It was also contended that in the event the Petitioner is aggrieved by order dated 24.01.2026 he should have preferred an appeal against such order of the First Appellate Court. In view of the aforesaid submission, learned counsel for the Plaintiff/Opposite Party contended that the learned trial Court has not committed any illegality and that the application of the Petitioner has been rightly rejected on the ground of delay and failure of the Defendant to satisfy the due diligence test under the proviso to Order 6 Rule 17 of the CPC.

9. Having heard the learned counsels appearing for both sides, on a careful examination of the background fact as well as the judgment of the First Appellate Court dated 24.01.2026 in RFA No.11 of 2025 at Annexure-2, this Court observes that the only dispute involved in the present CMP application is the rejection of

the Defendant's application under Order 6 Rule 17 for amendment to the written statement. The judgment of the learned First Appellate Court at Annexure-2, dated 24.01.2026, reveals that the judgment and decree were set aside and the matter was remanded back to the trial Court permitting the Defendant to adduce the additional evidence. While considering the application of the Petitioner under order 41 Rule 27 the appellate Court has applied the due diligence test and accordingly, the same has been answered by the learned First Appellate Court to the effect that the documents which are sought to be introduced at a belated stage were not within the knowledge of the Defendant.

10. On perusal of the Para 12 and 13 of the judgment at Annexure-2 it is very clear that the learned First Appellate Court has elaborately discussed the applicability of the due diligent test and the satisfaction thereof by the Defendant before permitting them to adduce additional evidence. Moreover, this Court is of the view that unless the W.S. is permitted to be amended to incorporate the additional evidence, such additional evidence would not be admissible in evidence and would be considered to be beyond the pleading. Moreover, it is necessary for the Defendant to amend the pleadings to incorporate the additional evidence in the pleading otherwise the same would not be helpful to the Defendant to establish its case before the learned trial Court.

11. In view of the aforesaid analysis of the factual as well as the legal position, this Court is of the considered view that the learned trial Court committed an illegality by not permitting the Petitioner to amend the pleadings to incorporate the additional evidence in the W.S. While making such observation, this Court is also aware

of the fact that there is some delay on the part of the Defendant to bring on record the relevant documents. Taking into consideration the aforesaid fact, this Court has no hesitation to set aside the impugned order dated 13.02.2026 passed in C.S. No.16 of 2022 by the learned Civil Judge, Senior Division, Umerkote. Accordingly, the same is hereby set aside subject to the Petitioner paying a cost of Rs.2000/- to the Defendant. Further taking into consideration the fact that the suit was earlier disposed of and later on by virtue of the First Appellate Court's order, the same has been remanded, the learned trial Court shall make every endeavour to expedite the hearing of the suit and conclude the hearing as expeditiously as possible, preferably within a period of six months. The Parties to the suit are directed to cooperate with the learned trial Court for early conclusion to the suit and they shall not take any unnecessary adjournments before the learned trial Court.

12. With the aforesaid observation and direction, the CMP application stands disposed of.

( A.K. Mohapatra ) Judge Sisir

Designation: PERSONAL ASSISTANT