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2015 DIGILAW 673 (ORI)

Nagarmal Agrawal v. Akhapati Shashi Bhushan Patra

2015-12-02

AKSHAYA KUMAR RATH

body2015
ORDER : Akshaya Kumar Rath, J. 1. Assailing the order dated 24.7.2015 passed by the learned Civil Judge (Senior Division), Bargarh in C.S. No. 149 of 2008, the instant petition is filed under Article 227 of the Constitution. By the said order, learned trial court rejected the application for amendment of the plaint. 2. The petitioner as plaintiff instituted C.S. No. 149 of 2008 in the court of learned Civil Judge (Senior Division), Bargarh impleading the opposite parties as defendants for a declaration of right, title and interest, eviction of the defendants from the suit land, delivery of vacant possession and for permanent injunction. 3. Pursuant to issuance of summons, defendant No. 2 entered appearance and filed written statement denying the assertions made in the plaint. While the matter stood thus, plaintiff filed an application under Order 6 Rule 17 CPC to amend the plaint. In the proposed amendment, the plaintiff intends to incorporate the plea that the original registered sale deed dated 9.8.1973 has been eaten and totally destroyed by rats in the last sentence of paragraph-1 of the plaint. By order dated 24.7.2015, the learned trial court came to hold that the application of the plaintiff to amend the plaint incorporating the same prayer has been rejected earlier. It is further held that the court has no power to review its own order. Further, the issues have been settled and the plaintiff has not mentioned why such a plea was not taken in the plaint. 4. Heard Mr. Mohapatra, learned counsel for the petitioner and Mr. Nayak, learned counsel for the opposite parties. 5. Proviso to Order 6 Rule 17 CPC stipulates 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 commencement of trial. 6. The application for amendment filed by the plaintiff has been rejected by the learned trial court on 26.12.2014. The same has attained finality. In view of the same, the plaintiff cannot file a successive application for amendment of the plaint. The application is an abuse of process of the court. Further, there is no whisper in the petition as to why the application for amendment was filed at the time of hearing of the suit. The same has attained finality. In view of the same, the plaintiff cannot file a successive application for amendment of the plaint. The application is an abuse of process of the court. Further, there is no whisper in the petition as to why the application for amendment was filed at the time of hearing of the suit. The plaintiff has not substantiated the plea of due diligence for not taking the said plea before the trial has commenced. 7. In view of the same, the learned trial court is quite justified in rejecting the application for amendment of the plaint. 8. Accordingly, the petition is dismissed.