Orissa High Court
Pradeep Kumar Upadhyay And Another vs Rama Krushna Mohanty And Others .... ... on 12 February, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: MADHUSMITA SAHOO
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 16-Feb-2024 19:52:13
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No. 28058 OF 2011
Pradeep Kumar Upadhyay and another .... Petitioners
Mr. Samir Kumar Mishra, Senior Advocate
being assisted by Mr. J. Pradhan, Advocate
-versus-
Rama Krushna Mohanty and others .... Opp. Parties
Mr. Maheswar Mohanty, Advocate
(For Opposite Party Nos.1, 3 to 9 & 11)
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 12.02.2024
11. 1. This matter is taken up through hybrid mode.
2. Petitioners in this writ petition pray for setting aside the order dated 15th September, 2011 (Annexure-5) passed by learned Civil Judge (Junior Division), Balasore in C.S. No.423 of 2004-I. whereby an application filed under Order VI Rule 17 CPC, has been allowed.
3. Mr. Mishra, learned Senior Advocate appearing for the Defendant Nos.2 and 4-Petitioners submits that the suit has been filed with the following relief:
"Let, it be declared that, the Plaintiffs have got right of easement over the Schedule 'A' land on the strength of their purchase from the deft. No.1. Let the defendants be permanently restrained from creating any disturbance in the peaceful possession of the plaintiffs for egress and ingress of the plaintiffs over schedule 'A' land and to change the nature and character of the suit land in any manner. Let the cost of the suit advocate's fees etc. be decreed in favour of the plaintiffs. Any other relief or reliefs under law and equity which are just and proper be also decreed in favour of the plaintiffs."
Schedule 'A' land consists of :-
Page 1 of 5// 2 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Feb-2024 19:52:13 "Schedule 'A' Land District and Collectorate Balasore, P.S.- Remuna, No.149 Mouza-Madhipur, M.S. Khata No.160, Plot No.313, Ac.0.05 dec. out of Ac.1.10 decs. Which is indicated in the deed bearing No.3812 dtd.23.7.96 and in other deeds the size of the road is 15/16 links."
4. It is his submission that in Schedule 'A', the Plaintiffs described the suit pathway to be of fifteen/sixteen links width. By way of amendment, they want to enhance it to twenty links. Further a similar nature of application had already been dismissed earlier vide order dated 12th August, 2010. The said order was not challenged. The present application (Annexure-3) was filed subsequently with the similar nature of relief. Learned trial Court without considering the objection filed by the Petitioners, allowed the same. Assailing the same, the Petitioners moved this Court in W.P.(C) No.4431 of 2011, which was disposed of on 8th March, 2011 by setting aside the order allowing amendment and remitting the matter to learned trial Court for fresh adjudication of the amendment application. On remand, learned trial Court again allowed the application vide order under Annexure-5. Hence, this CMP has been filed.
5. Mr. Mishra, learned Senior Advocate further submits that by way of proposed amendment, the Plaintiffs want to enlarge the scope of the suit by enhancing the area of the pathway over which they claimed easementary right. The Plaintiffs claim easementary right of suit property on the basis of a Registered Sale Deed in which, it is allegedly stated that the vendor had provided a pathway of sixteen links width. There is no basis to enhance it to twenty links. Learned trial Court while adjudicating the matter, could not appreciate the same although Page 2 of 5 // 3 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Feb-2024 19:52:13 an objection to that effect was specifically raised and also the direction of this Court to consider the application afresh in accordance with law. In that view of the matter, the impugned order under Annexure-5 is not sustainable and is liable to be set aside.
6. Mr. Mohanty, learned counsel for the Plaintiffs-Opposite Party Nos.1,3 to 9 and 11 submits that the previous application for amendment was rejected on the ground that learned counsel, who moved the application was not so authorized. As such, said application was not disposed of on merit. Hence, a subsequent application claiming self-same relief is maintainable. It is his submission that during pendency of the suit, the Defendant No.4 constructed a boundary wall by encroaching some portion of the suit pathway (Schedule 'A'). Similarly Defendant Nos.2 and 3 being united together jointly encroached upon some portion of the suit pathway by putting fence with an intention to defeat the object of filing the suit. Further during pendency of the suit, Defendant No.2 has also obtained a deed on 20th December, 2006 from Defendant No.1 with an ulterior motive to defeat the Plaintiffs' claim. Thus, the cause of action for filing of the application for amendment arose during pendency of the suit. Hence, an application under Order VI Rule 17 CPC was filed claiming certain relief.
6.1. He, however, submits that the suit pathway is of twenty links width. But, inadvertently it is stated to be sixteen links in Schedule 'A'. As such, the amendment sought for was bona fide and necessary for just adjudication of the suit. The relief claimed in the amendment petition was due to the subsequent events Page 3 of 5 // 4 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Feb-2024 19:52:13 during pendency of the suit. Hence, learned trial Court has committed no error in allowing the application for amendment. It is his submission that since trial of the suit had not commenced at the time of adjudication of the petition for amendment, there was no legal impediment to entertain the same. He, therefore, prays for dismissal of the writ petition.
7. Considering the submissions made by learned counsel for the parties and on perusal of the materials available on record, more particularly, the petition for amendment at Annexure-3, it appears that the cause of action for filing the petition for amendment arose during pendency of the suit. Of course, learned trial Court should not have gone into the merits of the proposed amendment. The same can only be adjudicated at the time of hearing by receiving evidence from the parties.
8. It appears that an earlier application for amendment under Order VI Rule 17 CPC was dismissed on 12th August, 2010. But, from the impugned order under Annexure-5, it appears that the said application was rejected on the ground that learned counsel, who moved this application was not so authorized. As such, subsequent application under Annexure-3 for amendment of the plaint is maintainable.
9. On perusal of the plaint, a copy of which is produced by Mr. Mishra, learned Senior Advocate at the time of hearing of the writ petition, it appears that the amendment with regard to enhancement of the width of the pathway, i.e., from fifteen/sixteen links width to twenty links Plaintiffs claim easementary right over Schedule 'A' property, on basis of the sale deed executed in their favour. But, it is not known as to Page 4 of 5 // 5 // Signature Not Verified Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 16-Feb-2024 19:52:13 how the Plaintiffs by way of amendment claim the pathway to be twenty links. No material was also produced by the Opposite Parties in support of seeking for such amendment. Thus, the amendment with regard to the width of pathway from sixteen links to twenty links is not sustainable. As such, the same stands rejected.
10. So far as the rest of amendments sought for, this Court is of the considered opinion that cause of action for those amendments having arisen after filing of the suit, the same are justified subject to ascertainment of correctness of the same at the time of hearing of the same.
11. Accordingly, the impugned order with regard to amendment of area of Schedule 'A' is set aside along with pleadings and sketch map forming the basis to claim such amendment and confirms the rest part of the impugned order. Learned trial Court is directed to allow the Plaintiffs to amend the plaint accordingly.
12. With the aforesaid observation and direction, the writ petition is disposed of.
13. Since the suit is of the year, 2004, learned trial Court should make its best endeavour to see that it is disposed of at an early date without granting unnecessary/long adjournment to any of the parties of the suit.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra)
ms Judge
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