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2014 DIGILAW 739 (ORI)

Bijaya Kumar Sahoo v. S. K. Wasak

2014-11-10

AKSHAYA KUMAR RATH, AMITAVA ROY

body2014
JUDGMENT : Amitava Roy, C.J. 1. The instant appeal witnesses a challenge to the Order Dated 24.1.2014 passed in W.P. (C) No. 11912 of 2007 questioning the tenability of the Order Dated 6.9.2007 passed by the Learned Civil Judge (Jr. Divn.), Kendrapara, in T.S. No. 475 of 2001 rejecting the Appellant Writ Petitioner's application under Order 6 Rule 17 of the Civil Procedure Code (for short, hereinafter referred to as "the Code") seeking amendment of his plaint. 2. We have heard Mr. K.M. Mishra, Learned Counsel for the Appellant & Mr. R.K. Kar, Learned Counsel for the Respondents. 3. An abridged version of the recorded facts is essential for the present adjudication. 4. The Appellant Writ Petitioner had instituted T.S. Case No. 475/2001 against the Respondents praying for a decree for declaration of his right, title & interest over the suit land, as set out in the schedule to the plaint, & for eviction of the Defendants therefrom by demolishing their structures standing thereon. A decree for permanent injunction was also sought for restraining the Defendants from constructing any new house on the land & from cutting/removing trees existing thereon. 5. Filtering out the inessential facts, suffice it to state that the Appellant-Writ Petitioner claimed title on the suit property on the basis of a registered deed of sale dated 22.5.1984 executed, according to him, by the erstwhile owners in possession, Khirod Chandra Senapati & Abani Senapati, whereafter the possession of the conveyed property was delivered to him. While pleading that the land was mutated in his name in the ROR, he further averred in his plaint that following the Super Cyclone in the year 1999, the houses of the Defendants, which then were situated on the western side of the suit property, also got damaged & on a request being made by them he permitted Defendant Nos. 1 & 2 to reside in his thatched house after necessary repairs out of sympathy & on their assurance that they would vacate the same within four months by which they would repair their house. The Appellant-Writ Petitioner in the plaint alleged that, however, during his temporary absence from Cuttack in connection with his professional callings, Defendant Nos. 1 & 2 forcibly constructed one long thatched house over the suit land & also raised one brick-wall thereon. The Appellant-Writ Petitioner in the plaint alleged that, however, during his temporary absence from Cuttack in connection with his professional callings, Defendant Nos. 1 & 2 forcibly constructed one long thatched house over the suit land & also raised one brick-wall thereon. According to the Appellant-Writ Petitioner, the Defendants did not pay any heed to his protest, whereafter he informed the Kendrapara Police Station & on the intervention of the police the construction works were suspended. Pleading that the Defendants had no right, title & interest in the suit land to conduct themselves in such illegal manner, he filed the suit seeking the above reliefs. 6. According to the Appellant-Writ Petitioner, on his prayer, the Learned Trial Court after registering the suit issued an order of temporary injunction directing maintenance of status quo of the suit property. However, in defiance thereof, as they did indulge in the activity of raising further construction, he filed an application under Order 39 Rule 2A of the Code. He also filed an application under Order 6 Rule 17 of the Code for amendment of the plaint for incorporating the above fact of construction on the suit land in disobedience of the order of status quo. This was on 1.5.2006. He filed another application also under Order 6 Rule 17 of the Code with the same prayer on 2.7.2007 & also filed an application with a prayer not to press the petition for amendment dated 1.5.2006. 7. As the order sheet of the suit would reveal, by Order Dated 24.8.2007 the Learned Trial Court after hearing both the parties rejected the petition dated 1.5.2006 of the Appellant-Writ Petitioner seeking amendment of the plaint. Prior thereto, by Order Dated 24.4.2007 the Appellant-Writ Petitioner's application under Order 39 Rule 2A, CPC was also rejected on merits. Significantly, the said order of rejection was not challenged by the Appellant-Writ Petitioner in any higher forum: Eventually, by Order Dated 6.9.2007 the application under Order 6 Rule 17, CPC filed on 2.7.2007 was rejected after a thorough consideration of the relevant materials on record & upon hearing the Learned Counsel for the parties. 8. As the Order Dated 6.9.2007 would reveal, apropos the prayer for amendment, the Defendants-Respondents in their written objection contended that the same was not only delayed but also contained inconsistent facts. That seeking amendment another application had been filed on 1.5.2006 was also mentioned. 8. As the Order Dated 6.9.2007 would reveal, apropos the prayer for amendment, the Defendants-Respondents in their written objection contended that the same was not only delayed but also contained inconsistent facts. That seeking amendment another application had been filed on 1.5.2006 was also mentioned. That the amendment as prayed for, if allowed would alter the nature & character of the suit was pleaded as well. The Defendants-Respondents also categorically stated that the application under Order 39 Rule 2A of the Code had been dismissed & thus the prayer for amendment based on the same facts was not sustainable in law & on facts. 9. The Learned trial rejected the prayer for Court amendment by recording the following observations: 1. The suit was of the year 2001 & the evidence had not yet started. 2. In between, several miscellaneous cases had been filed. 3. The application under Order 39 Rule 2A of the CPC filed by the Appellant-Writ Petitioner had been dismissed against which no appeal/revision had been filed/preferred. 4. The application dated 1.5.2006 filed by the Appellant Writ Petitioner seeking amendment on the same ground had been rejected on 1.5.2006. 5. The proposed amendment though was to the knowledge of the Appellant-Writ Petitioner was not sought to be incorporated at the earliest. 10. On a consideration of the above aspects, the Learned Trial Court partially allowed the prayer for amendment by excluding the contents of paragraphs-5 & 9 of the application dated 2.7.2007 pertaining to illegal construction on the suit land by the Defendants/Respondents. 11. Being aggrieved, the Appellant-Writ Petitioner unsuccessfully challenged this order in W.P. (C) No. 1191 of 2007 & is presently in appeal. 12. Mr. K.M. Mishra, Learned Counsel for the Appellant, has emphatically argued that as there is no period of limitation prescribed for filing an application for amendment of pleadings, the Learned Trial Court as well as the Learned Single Judge did grossly err in rejecting the prayer for incorporation of the facts relating to the illegal construction made by the Defendants-Respondents on the suit land. According to the Learned Counsel, the amendment, as prayed for, would not change the nature & character of the suit &, therefore, in the interest of resolving the real controversy between the parties the same ought to have been allowed. 13. According to the Learned Counsel, the amendment, as prayed for, would not change the nature & character of the suit &, therefore, in the interest of resolving the real controversy between the parties the same ought to have been allowed. 13. We have carefully considered the pleaded facts & the documents as available, the Order Dated 6.9.2007 passed by the Learned Trial Court in particular & also the arguments advanced. 14. In terms of Order 6 Rule 17 of the Code, the Court may, at any stage of the proceedings, allow either party to alter or amend the pleading in such manner & in such term, as may be just & necessary for the purpose of determining the real question of controversy between the parties. The proviso predicates that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. 15. In the instant case, the suit is of the year 2001, as recorded by the Learned Trial Court & awaits for the evidence to be recorded. Meanwhile, a number of interim applications have been filed, which have consumed considerable length of time. 16. In Kailash v. Nanhku, (2005) 4 SCC 480 , the Hon'ble Apex Court had ruled that in civil suit, trial begins when issues are framed & cases set down fur recording of evidence. The proviso to Order 6 Rule 17 of the Civil Procedure Code thus is attracted to the facts & circumstances of present the case. 17. Be that as it may, apart from the fact that the applications dated 01.05.2006 & 02.07.2007 filed by the Appellant-Writ Petitioner seeking amendment of the plaint so far as they relate to allegation of illegal construction made by the Defendants-Respondents on the suit property relate back to the alleged incident to that effect on 9.2.2002 & 10.2.2002 there has been a delay ranging from 3 to 5 years in filing the same, as apparent on the face of the record. Not only the application dated 1.5.2006 was dismissed as not pressed at the instance of the Appellant-Writ Petitioner but his application under Order 39 Rule 2A of the Code carrying the same allegation was also dismissed on 24.4.2007, which having remained unchallenged has attained finality. Not only the application dated 1.5.2006 was dismissed as not pressed at the instance of the Appellant-Writ Petitioner but his application under Order 39 Rule 2A of the Code carrying the same allegation was also dismissed on 24.4.2007, which having remained unchallenged has attained finality. Noticeably, the prayer for amendment vis-avis this aspect of the controversy contained in paragraph-5 of the application dated 2.7.2007 reads thus: "It is apt to mention here that while the suit is pending, the Defendants on 09.02.2002 & on 10.02.2002 in violating the order of injunction (status quo) have forcibly completed the half built brick wall. As such Misc. Case No. 23/2002 is pending in this honourable Court under Order 39 Rule 2A of C.P.C., for violation of the order." 18. A bare perusal of the above text would reveal that in terms thereof Misc. Case No. 23/2002 registered on the application under Order 39 Rule 2A of the Code alleging violation of the order of injunction (status quo) has been mentioned to be pending though in terms of the Order Dated 6.9.2007 passed by the Learned Trial Court, the same has been rejected on 24.4.2007, i.e., much prior to the filing of application for amendment dated 2.7.2007. 19. On a conjoint consideration of above aspects, we are thus constrained to hold that the Appellant-Writ Petitioner was not diligent & prompt enough to seek amendment of the plaint as sought for by him vis-a-vis the aspect of illegal construction on the suit land by the Defendants-Respondents. The fact that his application under Order 39 Rule 2Acarrying the same allegation stands rejected on 24.4.2007 & that the order to the said effect has become final is also of decisive bearing. 20. In a plethora of decisions the Hon'ble Apex Court has observed that permission for amendment of pleadings is not available as a matter of right under all circumstances & that the Court must exercise its wide discretionary jurisdiction in a judicious manner. In Revajeetu Builders & Developers v. Naryanaswamy & sons & others, (2009) 10 SCC 84 ; the Hon'ble Apex, while reiterating the above, has enunciated that the basic test that govern the grant or rejection of such prayer in determination of real question in controversy or proper & effective adjudication. In Revajeetu Builders & Developers v. Naryanaswamy & sons & others, (2009) 10 SCC 84 ; the Hon'ble Apex, while reiterating the above, has enunciated that the basic test that govern the grant or rejection of such prayer in determination of real question in controversy or proper & effective adjudication. It was held that while deciding the applications for amendment, the Court must not refuse bona fide, legitimate, honest & necessary amendments & should never permit mala fide, worthless and/or dishonest amendments. In State of Madhya' Pradesh v. Union of India & another, (2011) 12 SCC 268 , their Lordships supplemented by propounding in terms of Order 6 Rule 17 CPC that after commencement of the trial, it must be shown that in spite of due diligence such amendment could not have been sought earlier. In J. Samuel & others v. Gattu Mahesh & others, (2012) 2 SCC, the Hon'ble Apex Court had observed that the Court's discretion to grant permission to a party to amend his pleadings lies on two conditions; firstly, no injustice must be done to the other side, &, secondly, the amendment must be necessary for the purpose of determining the real question in controversy between the parties. It was further enunciated that to balance the interests of the parties in pursuit of doing justice, the proviso to Order 6 Rule 17 had been added requiring exercise of due diligence by the parties applying for amendment, which cannot be dispensed with. 21. Judged on the above parameters, we are thus of the comprehension that the view taken by the Learned Trial Court & affirmed by the Learned Single Judge do comport to the underlying principles governing the law for amendment of pleadings & cannot be discarded as outrageously erroneous, illogical or absurd. The petition thus lacks in merit & is dismissed. Dr. Akshaya Kumar Rath, J. I agree.