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2017 DIGILAW 1160 (ORI)

Banshidhar Dash v. Radha Banshi Bihari Thakur

2017-10-16

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. This Civil Misc. Petition involves a challenge to an order allowing the application for amendment under Order 6 Rule 17 of C.P.C. at the instance of the plaintiff. 2. Assailing the impugned order, Sri Rath, learned counsel for the petitioner referring to various documents involved herein submitted that not only the suit is of the year 2003 but for the plaintiffs’ bringing an amendment application on earlier occasion though rejected by the trial court and allowed by the High Court and for the clear submissions in the written statement with regard to development brought through the present amendment application, the plaintiffs failing to bring such amendment at the first instance, second attempt of the plaintiffs being allowed, the amendment is not only illegal but the prayer having been involved a time barred claim is likely to seriously prejudice the prospect of the petitioner. It is also contended that the plaintiffs not only failed in satisfying the factum of due diligence but the impugned order also suffers on account of a decision of this Court in C.M.P. No.461 of 2017 (Binodini Sadual vrs. Ranjit Kumar Mohanty & others) disposed of on 16.8.2017 as well as remains contrary to the decision of the Hon’ble apex Court in Shiv Gopal Sah alias Shiv Gopal Sahu vrs. Sita Ram Saraugi & others reported in (2007) 14 SCC 120 . Referring to the proposed amendment at page-76 of the brief and the plea taken in the written statement filed way back in 2004, Sri Rath further contended that the trial court has failed in appreciating that the claim by way of proposed amendment was not only barred by time but also suffered for being contrary to the above decisions. 3. Sri Sarangi, learned counsel for the contesting O.P.2, on the other hand, objecting the submission made by the learned counsel for the petitioner referring to the averments made in the plaint submitted that the proceedings of the suit bearing T.S. No.29/1981 brought by way of amendment having been decided without involvement of the plaintiffs herein, the plaintiffs are justified in approaching for proposed amendment and this having been considered appropriately, there is no infirmity in the impugned order requiring this Court not to interfere with the same. Referring to a decision of the Hon’ble apex Court in Pankaja & another vrs. Yellappa (D) by Lrs. Referring to a decision of the Hon’ble apex Court in Pankaja & another vrs. Yellappa (D) by Lrs. & others reported in AIR 2004 SC 4102 , Sri Sarangi further submitted that for the decision therein having a direct bearing on the petitioner’s case, the impugned order cannot be found to be faulted with. 4. Considering the rival contentions of the parties, this Court finds, there is no dispute that the suit was filed originally in the year 2003. There is also no dispute that the defendants by filing written statement way back in 2004 have categorical pleadings involving T.S. No.29/1981 and the plea involving adoption involved by way of proposed amendment having been clearly found in the written statement filed in the year 2004, this Court observes that the plaintiffs had the occasion for bringing such amendment along with amendment taken place in the first instance. There is no dispute that the present amendment has been brought after lapses of fourteen years. Looking to the proposed amendment and the addition of prayer involved therein, this Court finds, for the clear pleadings in the written statement already within the knowledge of the plaintiffs at least since 2004, the pleadings as well as the prayer brought by way of amendment are grossly barred by time being contrary to the provision of the amendment of the provision under Order 6 Rule 17 of C.P.C. The legislative intention behind the provision to prevent entertaining the application for amendment grossly barred by time with the sole relaxation allowing such amendment subject to satisfaction by the party seeking amendment on the aspect of due diligence. Perusing the application for amendment involving the impugned order, this Court nowhere finds any pleading at the instance of the plaintiffs regarding delay in bringing such amendment. Looking to the decisions cited by Sri Rath through C.M.P. No.461/2017, this Court following the decision of the Hon’ble apex Court in Basant Balu Patil & others vrs. Mohan Hirachand Shah & others, (2016) 1 SCC 530 deciding a case involving similar situation has clearly observed that the application at such belated stage should not be entertained. Taking into consideration the decision reported in (2007) 14 SCC 120 , this Court finds, the decision has a direct bearing on the case at hand and supporting the case of the petitioner. Taking into consideration the decision reported in (2007) 14 SCC 120 , this Court finds, the decision has a direct bearing on the case at hand and supporting the case of the petitioner. Similarly looking to the decision cited at the instance of the O.P.2 reported in AIR 2004 SC 4102 , this Court for the change in the facts scenario in between the case at hand and the case involved in the decision indicated herein above finds no application of the decision to the case at hand. 5. For the observations made herein and the decisions referred to herein above supporting the case of the petitioner, this Court finds, the impugned order suffers on account of delay and latches and also being contrary to the decision referred to herein above. Under the circumstance, interfering with the impugned order, this Court sets aside the impugned order, vide Annexure-1 and rejects the application under Order 6 Rule 17 of C.P.C. at the instance of the plaintiffs. 6. The Civil Misc. Petition succeeds. No cost.