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2014 DIGILAW 153 (ORI)

Gangabati Birgunthia v. Bijay Kumar Moor

2014-03-04

B.R.SARANGI

body2014
ORDER : 04.03.2014 – Heard Mr. A. P. Bose, learned counsel for the petitioners and Mr. S.Udgata, learned counsel for the caveator-opposite parties. This application has been filed by the petitioners assailing the order dated 30.10.2013 passed by the learned Civil Judge (Junior Division), Jharsuguda in C.S. No. 69 of 2005 rejecting the application filed under Order 6, Rule 17, CPC for change of valuation of the suit from Rs. 15,000/- to Rs. 51,000/-. Mr. A.P. Bose, learned counsel for the petitioner states that by rejecting such application under Order 6, Rule 17, CPC, the learned Court below has committed gross error apparent on the face of record on the ground that the defect in the valuation of the suit has been pointed out at the fag end of hearing of the suit and by allowing such application for amendment of the plaint, no prejudice would be caused to the defendants-opposite parties. Mr. S. Udgata, learned counsel appearing for the defendants-opposite parties states that at this stage, the application under Order 6, Rule 17 CPC cannot be allowed because the trial has commenced by framing of issues, Apart from the same, he states that as per the proviso to Order 6, Rule 17, CPC, the plaintiffs-petitioners have not pleaded anything in the application regarding due diligence seeking amendment of the plaint. Since the same has not been stated, if amendment is allowed, it will be in gross violation of the provisions contained in the proviso to Order 6, Rule 17, CPC and more so, after framing of issues this Court has no jurisdiction to allow the amendment at this stage as it amounts that the trial has commenced. In support of his contention, he has placed reliance on the judgment of the apex Court in Vidyabai and others v. Padmalatha and another, AIR 2009 SC 1433 . Considering the contentions raised by the parties and after perusing the records, it is found that the plaintiffs have filed the suit for declaration of right, title and interest over the suit properties on the basis of adverse possession or the alternative recovery of possession as well as declaration that the registered sale deed No. 215 of 3.2.1978 to be null and void with other reliefs. In the said suit, they have made the valuation of the suit at Rs. In the said suit, they have made the valuation of the suit at Rs. 15,000/- but by way of amendment, they have filed an application under Order 6, Rule 17 CPC for amendment of the plaint by enhancing the valuation of the suit from Rs. 15,000/- to Rs. 51,000/- and for such amendment, they have filed an application under Annexure-2. On perusal of the same, it appears that the plaintiffs have not made any statement showing due diligence why such application for change of valuation has been filed. That apart, in the meantime issues have been framed and the nearing of the suit has already commenced. In view of the proviso to Order 6, Rule 17, CPC this Court has limited jurisdiction to interfere with the impugned order. In Vidyabai and others (supra), the apex Court has held that by reason of insertion of the proviso to Order 6, Rule 17, CPC, it couched in a mandatory form. The Court's jurisdiction to allow such application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. Therefore, the proviso appended to Order 6, Rule 17, CPC restricts the power of the Court and it puts an embargo on exercise of its jurisdiction. The Court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the Court will have no jurisdiction at all to allow the amendment of the plaint. In view of the foregoing discussions and the law laid down by the apex Court, this Court is not inclined to interfere with the impugned order. Accordingly, the writ petition fails and the same is dismissed. Petition dismissed.