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2014 DIGILAW 155 (ORI)

K. Satyanarayan Rao v. Tusharkanta Mahakul

2014-03-05

B.R.SARANGI

body2014
ORDER : 05.03.2014 - Heard Mr. R.K. Rout, learned counsel for the petitioner and Mr. K.K. Rout, learned counsel for opposite party No. 1. This application has been filed by the defendant-petitioner assailing the order dated 12.11.2008 passed by the learned Civil Judge (Senior Division), Rourkela in C.S. No. 86 of 2007 allowing the amendment petition filed by the plaintiff-opposite party No. 1 under Order 6, Rule 17 CPC under Annexure-12. The plaintiff filed a Civil Suit bearing No. C.S. No. 86 of 2007 seeking for ad interim injunction restraining the defendants from disturbing the possession of the plaintiff-opposite party, for a direction to the defendants to transfer the suit property in favour of the plaintiff and for a direction to the defendant Nos. 1 and 2 to execute tripartite lease deed in respect of the suit property. Pursuant to the notice, defendants entered appearance and also filed written statement. Mr. R.K. Rout, learned counsel for the petitioner submits that in the meantime issues have been framed and at this stage the plaintiff filed a petition under Order 6, Rule 17 CPC for amendment of the plaint vide Annexure-6 to the writ petition on 23.05.2008. Objection to the said petition was filed by the defendants vide Annexure-7 and the matter was posted for hearing. The plaintiff filed a memo vide Annexure-8 seeking for not pressing the petition filed under Order 6, Rule 17 CPC in Annexure-6 and on consideration of the said memo the learned Court below on 08.09.2008 disposed of the said petition as not pressed. He further submits that on the self same ground the plaintiff filed another petition under Order 6, Rule 17 CPC vide Annexure-10 to the writ petition with modification of certain languages. Objection to the said petition was also filed by the defendants vide Annexure-11. On consideration of the said petition, the learned Court below passed the impugned order dated 12.11.2008 vide Annexure-12. Mr. R.K. Rout, learned counsel for the petitioner also submits that once the amendment petition has been not pressed, the second petition for amendment should not have been entertained by the trial Court. He further submits that the trial has been commenced by framing of issues and in view of provisions contained in proviso to Order 6, Rule 17, there is a bar to entertain such application. Mr. He further submits that the trial has been commenced by framing of issues and in view of provisions contained in proviso to Order 6, Rule 17, there is a bar to entertain such application. Mr. K.K. Rout, learned counsel for the plaintiff-O.P. No. 1 submits that earlier even if the petitioner filed a petition under Order 6, Rule 17 CPC but the same has been not pressed and there is no adjudication on the merits of the said application. So far as applicability of the proviso to under Order 6, Rule 17 CPC is concerned, issues have only been framed, so it will not cause prejudice to the parties. Therefore, this Court may take liberal view in the matter. Considering the contentions raised by the parties and on perusing the record, it appears that initially the petitioner filed a petition under Order 6 Rule 17, CPC for amendment vide Annexure-6 but the same has been not pressed and as such no adjudication has been made on merits. Subsequently, he filed another petition under Order 6, Rule 17, CPC vide Annexure-10. Learned Civil Judge (Senior Division), Rourkela allowed the same. Therefore, the trial Court has not committed any error in entertaining the petition for amendment. So far as applicability of proviso to Order 6 Rule 17, CPC is concerned, it is stated that since only issues have been framed and effectively hearing has not commenced by adducing evidence by the parties, in the event amendment is allowed and liberty is granted to the defendants to file additional written statement, it will not cause any prejudice to anybody. Therefore, this Court is not inclined to interfere with the impugned order. However, liberty is granted to the defendants to file additional written statement to the extent amendment of plaint is allowed. With the above observation and direction, writ petition is disposed of. Urgent certified copy of this order be granted on proper application. Petition disposed of.