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2019 DIGILAW 100 (ORI)

Jugal Kishor Banka v. Gopal Gosala, Bargarh

2019-02-06

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This petition challenges the order dated 2.8.2017 passed by the learned Civil Judge (Senior Division), Bargarh in C.S. No.175 of 2006 whereby and where under learned trial court rejected the application of the defendant under Order 6 Rule 17 CPC for amendment of the written statement-cum-counter claim. 2. Plaintiff-Opposite party instituted C.S. No.175 of 2006 for declaration of title. Defendant-petitioner entered contest and filed a written statement-cum-counter claim denying the assertions made in the plaint. While the matter stood thus, the plaintiff filed an application to withdraw the suit on the ground that the matter has been settled between the parties. The defendant objected to the said petition. By order dated 2.8.2017, learned trial court disposed of the suit as withdrawn. Thereafter, defendant filed an application under Order 6 Rule 17 CPC to amend the written statement-cum-counter claim. In the proposed amendment, defendant sought to incorporate the fact that he is the owner in possession of the suit property. After death of his father, he is in possession of the suit property along with his mother. Thereafter, he is in possession of the suit property. He used to pay rent to the Government. With this factual scenario, he sought to incorporate the prayer for declaration of title over the suit property and conformation of possession. The plaintiff filed an objection. Learned trial court came to hold that the proposed amendment is contrary to the plea taken in the written statement-cum-counter claim. The petition has been filed after eight years of filing the written statement-cum- counter claim. The same will change the nature and character of the suit. Held so, it rejected the petition. 3. Heard Mr. Amit Prasad Bose, learned counsel for the petitioner. None appeared for the opposite party in spite of valid service of notice. 4. Mr. Bose, learned counsel for the petitioner submitted that the proposed amendment is formal in nature and will not change the nature and character of the suit. Merely because the application for amendment of the written statement-cum-counter claim is filed after eight years, the same is not per se a ground to reject the same. The proposed amendment is imperative for effectual adjudication of the lis. 5. Before adverting to the contentions raised by the learned counsel for the petitioner, it is apt to refer the proviso to Order 6 Rule 17 CPC. "17. The proposed amendment is imperative for effectual adjudication of the lis. 5. Before adverting to the contentions raised by the learned counsel for the petitioner, it is apt to refer the proviso to Order 6 Rule 17 CPC. "17. Amendment of Pleadings- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 6. In Chander Kanta Bansal v. Rajinder Singh Anand, (2008) AIR SC 2234, the apex Court held that the proviso limits the power to allow amendment after the commencement of trial, but grants discretion to the court to allow amendment, if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment. Proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. 7. The facts, which are sought to be raised by way of amendment of written statement-cum-counter claim, were within the knowledge of the defendant. The same reveals the absence of due diligence on the part of the defendant. 8. 7. The facts, which are sought to be raised by way of amendment of written statement-cum-counter claim, were within the knowledge of the defendant. The same reveals the absence of due diligence on the part of the defendant. 8. The impugned order of the learned trial court does not suffer from jurisdictionional error, nor any error of law warranting interference of this Court under Article 227 of the Constitution. 9. Accordingly, the petition is dismissed. There shall be no order as to costs.