Orissa High Court
Sujit Kumar Bhanja vs Sisir Kumar Bhanja And Others .... Opp. ... on 7 December, 2021
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1794 of 2016
Sujit Kumar Bhanja .... Petitioner
Mr. Suvendu Kumar Ray, Advocate
-versus-
Sisir Kumar Bhanja and others .... Opp. Parties
Mr. Suresh Chandra Dash, Advocate
(For Opposite Party Nos.1 and 2)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 07.12.2021 5. 1. This matter is taken up through hybrid mode.
2. Petitioner in this CMP seeks to assail the order dated 7th November, 2016 (Annexure-3) passed by learned Civil Judge (Senior Division), Bhubaneswar in CS No.1571 of 2011, whereby he rejected an application filed by the Plaintiff/Petitioner under Order VI Rule 17 CPC.
3. Mr. Ray, learned counsel for the Petitioner submits that one Ashamani Bhanja filed CS No.1571 of 2011 for partition of schedule 'A' and 'B' of the suit property. In paragraphs 10 and 12 of the plaint although it is averred that the parties to the suit have joint family properties at different places of the State, but she could not incorporate all the joint family properties in the plaint, as she had no definite knowledge about the same. Subsequently, said Ashamani Bhanja died and Defendant No.4, her son, namely, Sujit Kumar Bhanja was transposed as plaintiff vide order dated 20th February, 2016. After being transposed, the Petitioner/Plaintiff No.2`came to know that Page 1 of 4 // 2 // certain properties at Kalinga Nagar, Jajpur, Sundarpada, Bhubaneswar, Talabania, Puri and Gada Haladia, Khordha were not incorporated in the schedule of the plaint for partition. Hence, he filed an application under Order VI Rule 17 CPC to incorporate Schedule 'C', 'D' and 'E' properties to the amendment application in the plaint. It is his submission that learned Civil Judge, without considering the fact that preliminary decree for partial partition cannot be passed, refused the prayer for amendment of the plaint, on the ground that trial of the suit has already commenced and substantially proceeded. Cross-examination of DW-2 is only left for completion of the trial. Further, the Petitioner/ Plaintiff No.2 has not shown due diligence in filing the amendment petition after commencement of trial. It is his submission that although the proviso to Order VI Rule 17 CPC prohibits amendment after commencement of trial, if the Plaintiff fails to show due diligence in not making such prayer before commencement of the trial, but there is no absolute bar to entertain the application after commencement of trial, when the amendment sought for is imperative for just adjudication of the subject matter of dispute. He, therefore, prays for setting aside the impugned order and direct learned trial Court to permit the Petitioner to amend the plaint.
4. Mr. Dash, learned counsel for Opposite Party Nos. 1 and 2/Defendant Nos.1 and 2 vehemently objects to the said submission. It is contended that the properties under Schedule C, D and E of the amendment petition are self-acquired properties of the Defendant No.1 and not ancestral properties. The same has been recorded as such in his name much before Page 2 of 4 // 3 // filing of the suit. Defendant No.1 also repaying the loan he had incurred for purchase of said properties. Hence, the same are not liable for partition. Learned trial Court considering the matter in its proper perspective passed the impugned order by rejecting the application for amendment. As such, the CMP merits no consideration and is liable to be dismissed.
5. Taking into consideration the rival contentions of learned counsel for the parties, it appears that the property in Schedule 'C', 'D' and 'E' properties to the amendment application have been recorded in the name of Defendant No.1. It is the allegation of the Plaintiff that the Defendant No.1 has purchased properties utilizing the joint family nucleus. However, Mr. Dash, learned counsel for the Opposite Party Nos. 1 and 2 vehemently objects to the same. It is trite law that merit of the pleading sought to be incorporated by way of amendment for cannot be gone into while considering the petition under Order VI Rule 17 CPC. It can only be considered by leading cogent evidence during trial, in the event those are incorporated in pleading. Further, it also appears in paragraphs 10 and 12 of the plaint the Plaintiff has taken a specific plea that the joint family properties are situated at different places. It also appears that said Ashamani Bhanja, the original plaintiff was none other than mother of the parties to the suit. She was about 75 years old at the time of filing of the suit. Hence, it is quite obvious that she might not be knowing the detail particulars of the properties. However, on her death, Defendant No.4 was transposed as plaintiff vide order dated 20th February, 2016 and filed an application for amendment on 16th September, 2016. True it is that, trial of the suit has already Page 3 of 4 // 4 // commenced and has progressed substantially, but unless the amendments sought are allowed, there is every likelihood of partial partition of the suit properties. In that event, the parties will suffer and it will lead to multiplicity of litigations. In other words, the amendment sought for are imperative for just adjudication of the controversy between the parties.
6. In view of the above, I am of the considered opinion that the impugned order under Annexure-3 is not sustainable. Accordingly, the same is set aside. Petition for amendment filed by the Plaintiff is allowed. However, for the loss suffered by the Defendant Nos.1 and 2 for such amendment can be compensated by cost. Accordingly, this Court directs that on payment of cost of Rs.5,000/- (rupees five thousand only) to the Defendant Nos.1 and 2 along with the amended plaint before the learned trial Court within a period of fifteen days hence, it shall accept the same and proceed with the matter in accordance with law.
7. With the observation and direction, as aforesaid, the CMP is disposed of. Interim order dated 7th December, 2016 passed in Misc. Case No.1896 of 2016 stands vacated.
Issue urgent certified copy of the order on proper application.
(K.R. Mohapatra) Judge s.s.satapathy Page 4 of 4