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2017 DIGILAW 982 (ORI)

Minati Mallik v. Balaram Mallik

2017-09-04

BISWANATH RATH

body2017
ORDER 4.9.2017. Heard Sri M.Sahu, learned Counsel for the petitioner and Sri D. Nayak, learned Counsel for the opposite party. This Civil Misc. Petition involves an order allowing an amendment at the instance of the plaintiff on 19.1.2016 available at Annexure-6. The impugned order is challenged by Sri Sahu, learned Counsel for the petitioner on the premises that when an application under Order 7 Rule 11 of C.P.C. was filed, it was not proper for the trial court to keep that application pending and at the same time considering an application under Order 6 Rule 17 of C.P.C. at the instance of the plaintiff. It is under the premises, Sri Sahu submitted that the impugned order becomes bad and should be interfered with and liable to be set aside. Sri Nayak, learned Counsel for the opposite party, on the other hand, objecting the submission of the learned Counsel for the petitioner, submitted that there is no prohibition on the plaintiff to bring forward the application for amendment during pendency of the application under Order 7 Rule 11 C.P.C. and further since the trial of the suit has not commenced, the petitioner has a scope for additional written statement and there is no harm in allowing the application for amendment. Further for the reason assigned by the Trial Court in the impugned order, there is also otherwise no infirmity in the impugned order. Further for the reason assigned by the Trial Court in the impugned order, there is also otherwise no infirmity in the impugned order. Considering the objection raised by Sri Sahu, learned Counsel for the petitioner that it is not proper for the Trial Court to keep the application under Order 7 Rule 11 of C.P.C. pending and decide the application under Order 6 Rule 17 of C.P.C. on merit, this Court finds, there is no bar for the Trial Court to consider the application under Order 6 Rule 17 of C.P.C. ahead of considering the application under Order 7 Rule 11 of C.P.C., and therefore, this Court finds, there is no illegality in taking up the application under Order 6 Rule 17 of C.P.C. Further perusal of the impugned order at Annexure-6, this Court finds, the Trial Court considering the request of the petitioner sought an amendment during hearing of the Order 7 Rule 11 of C.P.C. application, by order dated 16.12.2015 permitted the opposite party to file an application under Order 6 Rule 17 of C.P.C. This order having not been challenged, it is presumed that the petitioner has accepted the order, and therefore, he is stopped from raising any objection before the Trial Court considering the application under Order 6 Rule 17 of C.P.C. ahead of consideration of the application under Order 7 Rule 11 of C.P.C. Therefore, this Court finds no infirmity in the impugned order and as a consequence, finding no merit dismisses the Civil Misc.. Petition. The application under Order 7 Rule 11 of C.P.C. since pending, the Trial Court is directed to dispose of the said application by giving opportunity of hearing to both sides within a period of two months hence. Issue urgent certified copy. Petition dismissed.