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2017 DIGILAW 1250 (ORI)

Executive Engineer v. Susama Mangaraj

2017-11-02

BISWANATH RATH

body2017
JUDGMENT : Biswanath Rath, J. 1. This matter involves rejecting an application under Order 6 Rule 17 of C.P.C. at the instance of the State-plaintiff. 2. Taking this Court to the proposed amendment and the observations of the trial court, Sri B.R. Behera, learned Additional Standing Counsel appearing for the petitioner contended that for filing of amendment application almost within one year of filing of the suit and for involvement of a vital issue and prayer involved therein within the time stipulation for doing so, it appears the trial court has failed in appreciating the issue involved and the relevancy with the amendment in deciding the suit at least keeping in view of an effective adjudication of the suit as well as avoiding multiplicity of litigations between the parties involving the same property. Under the circumstance, Sri Behera, learned Additional Standing Counsel opposed the impugned order and requested this Court for interfering with the same and allowing the application under Order 6 Rule 17 of C.P.C. by setting aside the impugned order. 3. Sri P.K. Rath, learned counsel for O.P.2 opposing the submission made by the learned Additional Standing Counsel and taking this Court to the rejection of earlier application under Order 6 Rule 17 of C.P.C. at the instance of same party submitted that for the rejection of the earlier application having almost the same prayer, a subsequent application was per se not maintainable. Further taking this Court to the present amendment application involved herein, Sri Rath contended that for there being no explanation for bringing such amendment after one year, the petitioner failed in satisfying the court on the factum of due diligence. Sri Rath taking this Court to the observations of the trial court submitted that there has been due application of mind in passing the impugned order, which leaves no scope for interfering with the same. Sri Rath also relying on three decisions of the Hon’ble apex Court in Chander Kanta Bansal vrs. Rajinder Singh Anand, AIR 2008 SC 2234 , RAjkumar Gurawara (Dead) Thr.L.Rs. vrs. M/s.S.K.Sarwagi & Co. Pvt. Ltd. & another, AIR 2008 SC 2303 and Vidyabai & others vrs. Padmalatha & another, AIR 2009 SC 1433 contended that for the ratio involved therein, all the decisions support the case of the O.P.2. Sri Rath thus contended that there is no legal infirmity in the impugned order. 4. vrs. M/s.S.K.Sarwagi & Co. Pvt. Ltd. & another, AIR 2008 SC 2303 and Vidyabai & others vrs. Padmalatha & another, AIR 2009 SC 1433 contended that for the ratio involved therein, all the decisions support the case of the O.P.2. Sri Rath thus contended that there is no legal infirmity in the impugned order. 4. Considering the rival contentions of the parties and on perusal of the order-sheet of the trial court being produced by Sri Rath, learned counsel for O.P.2, this Court finds, there is no dispute that the petitioner had earlier moved an application under Order 6 Rule 17 of C.P.C. involving declaration of right, title and interest of the plaintiff (the petitioner herein) over the suit property along with a prayer for recovery of possession also. But however going through the order dated 12.7.2013 of the trial court, this Court finds, the plaintiff-petitioner filed a memo not to press the amendment application during proceeding dated 12.7.2013 and on 16.7.2013 an application under Order 6 Rule 17 of C.P.C. was rejected upon consideration of the memo filed. It is at this stage considering the submission of Sri Rath, learned counsel for O.P.2 that the successive application under Order 6 Rule 17 of C.P.C. is not maintainable, the claim of Sri Rath has no substance, as the trial court has rejected the application under Order 6 Rule 17 of C.P.C. only based on the memo filed by the plaintiff and there has been no consideration of prayer involved in the application under Order 6 Rule 17 of C.P.C. on merit. 5. Now coming to the merit involving rejection of application under Order 6 Rule 17 of C.P.C., looking to the proposed amendment introduced by the plaintiff-petitioner, this Court finds, there is no dispute that the plaintiff-petitioner has once again applied for declaration of right, title and interest along with recovery of possession in the event there is disturbance in the possession of the parties. For the rejection of the earlier application for being not pressed, such a prayer in the successive application is very much maintainable. For the rejection of the earlier application for being not pressed, such a prayer in the successive application is very much maintainable. Further looking to the introduction of prayer without taking away the admission already therein in the plaint averments and finding the prayer for right, title and interest and recovery of possession being made within a period of three years from the date of cause of action, this Court also finds, there is no delay in moving such prayer or bringing such pleading to be incorporated in the pending suit. Evidence of some witnesses already recorded is immaterial at least keeping in view that allowing the amendment will not only avoid multiplicity of litigation but there can also be an effective adjudication of the suit. Considering the decisions cited by Sri Rath, learned counsel for O.P.2, this Court finds, two of the decisions involved amendment of written statement and other decision though involved amendment of plaint but amendment of the plaint was taken after four decades and under the circumstance, this Court finds, none of the decisions has any bearing in the case at hand. 6. Under the circumstance and as this Court finds, the impugned order is not sustainable, while interfering with the impugned order, this Court sets aside the order vide Annexure-1 thereby allowing the application under Order 6 Rule 17 of C.P.C. at the instance of the plaintiff. Petitioner thus permitted to file the amended plaint within two weeks from the date of this order. The additional written statement be also filed within ten days thereafter. For the introduction of new pleading and prayer, it will be also open to the parties to recall the witness for additional evidence as well as additional cross-examination, if any. Considering the suffering of the defendants for no fault of them, allowing of the amendment will be subject to however payment of cost of Rs.5000/- (rupees five thousand) to the O.P.-defendants in the court below within two weeks. Further considering the request of Sri Rath that the suit has already entered into trial and that the suit is pending since 2012, the trial court is directed to dispose of the suit as expeditiously as possible preferably within a period of one year from the date of filing of amended plaint. The Civil Misc. Petition succeeds but however with the direction and imposition of cost as herein above.