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2017 DIGILAW 1343 (ORI)

Pramila Swain v. Satyabhama Pradhan @Swain

2017-11-22

BISWANATH RATH

body2017
JUDGMENT BISWANATH RATH, J. - This Civil Misc. Petition involves challenging to the order of the trial Court dated 2.11.2015 involving C.S. No.227/2010 whereby the Trial Court considering an application for amendment of written statement rejected the attempt for amendment at the instance of the defendant. 2. Sri S.K. Dash, learned Counsel for the petitioner challenging the impugned order and taking this Court to the application under Order 6 Rule 17, C.P.C., contended that for the petitioner’s attempt to bring the reliefs at the instance of the defendants to the fold of suit involved without entering into any change in the pleadings and further without seeking recalling of witnesses examined, Sri Dash contended that for the simple nature of amendment without affecting the pleadings and the evidence already recorded should have been allowed. Sri Dash, learned Counsel for the petitioner further contended that refusal of such application will not only land in effective adjudication of the suit but also lead to multiplicity of litigations. It is under the circumstances, Sri Dash submitted that the impugned order of rejection becomes bad and should be interfered with by this Court and thereby allowing the application under Order 6 Rule 17 of C.P.C. 3. Sri P.K. Lenka, learned Counsel for the contesting O.P. No.1 refuting the allegations made by the learned Counsel for the petitioner and objecting the plea taken by the learned Counsel for the petitioner submitted that the attempt of the petitioner for amendment of written statement in the guise of counter claim being made at the stage of closure of evidence of P.W. 2 is wholly impermissible. Taking this Court to the history involved in the suit, Sri Lenka, leaned Counsel for the O.P.1 submitted that the defendants had also an earlier attempt of amendment of written statement. On allowing of such application, the defendants have already introduced new paragraphs such as paragraph- 6(a). Sri Lenka further objected the move of the learned Counsel for the petitioner on the premises that entertaining such attempt at this stage of the suit will be forcing the parties to recalling the witnesses and to have fresh evidence involving the amended prayer. On allowing of such application, the defendants have already introduced new paragraphs such as paragraph- 6(a). Sri Lenka further objected the move of the learned Counsel for the petitioner on the premises that entertaining such attempt at this stage of the suit will be forcing the parties to recalling the witnesses and to have fresh evidence involving the amended prayer. It is under the circumstances and citing two decisions of the Hon’ble Apex Court reported in 2009 (I) CLR (SC) 406 and 2011(I) CLR (SC) 811, Sri Lenka submitted that for the support of the decision, referred to herein above, to the case of the plaintiff, the impugned order does not suffer and thus requested this Court for dismissing the Civil Misc. Petition for having no merit. 4. Considering the rival contentions of the parties, this Court finds, the admitted position involving the suit is hereunder. The suit has already entered into trial. There is sufficient pleading involving the reliefs sought for by way of amendment of written statement. There is also a previous attempt of the defendants bringing amendment of written statement being allowed, paragraph-6(a) has been incorporated in the written statement. Plaintiff’s evidence is already closed. 5. Considering the submissions of the respective parties, this Court finds, admittedly there is sufficient pleading to attain the relief sought to be incorporated by way of amendment of the written statement and ultimately this Court finds, the defendant No.2-petitioner is justified in making a claim that the incorporation of the prayer is only for the purpose of adjudication of all the issues involved therein at one go and without interfering with the evidence already recorded. Be that as it may, this Court finds, the attempt of the petitioner in bringing a prayer at this stage of the suit might not be requiring for recalling of the witnesses already examined from the side of the plaintiff but for the introduction of the prayer in the guise of counter claim at this stage of the suit will certainly create a chance for the plaintiff to recall this witness/witnesses to have further evidence on this score. This Court at this stage while observing that the prayer sought to be incorporated without affective the pleadings already there in the written statement and without getting back to the witnesses already examined by the defendant will facilitate effective adjudication of all the issues at one go. This Court at this stage while observing that the prayer sought to be incorporated without affective the pleadings already there in the written statement and without getting back to the witnesses already examined by the defendant will facilitate effective adjudication of all the issues at one go. Further failure on entertaining such attempt at this stage of the suit may lead to multifarious litigations also. At the same time, this Court is also required to look into the prejudice to be caused to the plaintiff for allowing such amendment, particularly, keeping in view the introduction of a prayer at this stage of the suit thereby lingering in disposal of the suit. Further for the attempt of amendment of the written statement by the defendants at earlier instance, the plaintiff will also be suffering for no fault of her. The plaintiff is entitled to appropriate cost. 6. It is at this stage, considering the decision of Hon’ble Apex Court in Vijay Prakash Jorath vrs. Tej Prakash Jarath 2016 (I) OLR 1094 and another decision in Siddalingayya vrs. Gurulingappa ( 2017) 9 SCC 447, this Court finds, blocking of such attempt involving civil suits will deprive adjudication of relevant issues in one go and will further lead to multiplicity of litigations. 7. As a consequence, this Court interfering with the impugned order and setting aside the same allows the application under Order 6 Rule 17 of CPC. at the instance of the defendants but however subject to cost of Rs.10,000/- (rupees ten thousand to be paid to the plaintiff in the Court below within a period of two weeks hence. In the event the cost is paid in Court below within the time framed, the petitioner will be permitted to file additional written statement/counter claim within a period of ten days thereafter and if necessary, the plaintiff will be permitted to recall the witnesses already examined for further examination if the situation so desires. The Civil Misc. Petition succeeds but with the award of cost indicated herein above. CMP Succeeds with costs.