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2017 DIGILAW 1268 (ORI)

Lutumani Singh v. Siba Sankar Behera

2017-11-07

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This civil miscellaneous petition involves allowing an application for amendment at the instance of the plaintiffs during pendency of the appeal. 2. Taking this Court to the pleadings available in the plaint and the judgment and decree involved therein, learned counsel for the petitioners submitted that even though there is no dispute that an amendment can be permitted in appeal but for the amended provision of Order 6 Rule 17, a party seeking amendment is required to satisfy the factum of due diligence so as to establish that in spite of all his efforts, it was not possible for him to bring such amendment previously. Referring to the provisions contained in Order 6 Rule 17 and the citations of the Hon’ble Apex Court in the case of Chander Kanta Bansal versus Rajinder Singh Anand as reported in AIR 2008 SC 2234 and another in the case of Vidyabai and Ors. versus Padmalatha and Anr. as reported in AIR 2009 SC 1433 and taking this Court to the relevant portion therein learned counsel for the petitioner submitted that for support of the above decisions to the petitioners’ case, this Court should interfere with the impugned order and thereby, reject the application under Order 6 Rule 17 at the instance of the appellant therein. 3. In his opposition learned counsel for the opposite parties taking this Court to the proposed amendment submitted that the amendment involving taking out some plots affects the judgment and decree and further taking this Court to the observations made in the impugned order submitted that there has been right consideration of the issue involved leaving any scope for this Court to interfere with the same. 4. Considering the rival contentions of the parties and looking to the schedule of property involved in the suit and the prayer involved therein and also looking to the proposed amendment, this Court observes, allowing the amendment may affect the party and will also take away the effect of the judgment and decree. There is also possibility of rehearing of the suit inviting additional written statements as well as evidence from both the sides. There is also possibility of rehearing of the suit inviting additional written statements as well as evidence from both the sides. Further, looking to the tenor of the amendment brought by way of application under Order 6 Rule 17 of C.P.C. and the reasons assigned for bringing such amendment at a belated stage, this Court is not satisfied with the explanation of the petitioners that the petitioners were unable to establish that the proposed amendment portion could not have been brought in spite of due diligence and during pendency of the suit. 5. Under the circumstance, this Court finds, there is no satisfaction of the ingredient of the Order 6 Rule 17 of C.P.C. Taking into consideration the citations cited by the learned counsel for petitioners, this Court on perusal of both the decisions finds, the decisions have the support to the case at hand in favour of the petitioner. 6. Perusal of the judgment cited by Sri Biswal, learned counsel for the opposite parties this Court finds, the amendment application involved therein was by way of an attempt during pendency of the suit, which is not the position involving the case at hand. For the amendment herein being moved at the appellate stage, this Court observes, the decisions cited by the learned counsel for the opposite parties has no application to the case at hand. 7. For the observations made hereinabove and for the settled position of law requiring satisfaction of factum of due diligence, this Court finds, there has been no proper consideration of the application for amendment by the lower appellate Court. As a consequence, interfering with the impugned order, this Court sets aside the same and thereby, rejects the application under Order 6 Rule 17 of C.P.C. 8. The civil miscellaneous petition succeeds. No cost.