K.R. Mohapatra, J
1. This matter is taken up through hybrid mode.
2. Order dated 3rd October, 2023 (Annexure-5) passed by learned Civil Judge (Senior Division), Jaleswar in CS No.491 of 2022 is under challenge in this CMP, whereby an application filed by the Defendant No.3-Petitioner for amendment of his written statement, has been rejected.
3. Mr. Mishra, learned counsel for the Petitioner submits that the Plaintiffs-Opposite Party Nos.1 and 2 have filed the suit for partition for allotment of 2/3rd share of ‘B’ schedule property in favour of the Plaintiffs and 1/3rd share in favour of the Defendants. Although the written statement was filed, but inadvertently, the Defendant Nos.1, 3 and 5 could not take a stand that Laxmi Devya, the predecessors of the Plaintiffs had executed a Registered Gift Deed No.5099 dated 24th September, 1934 in favour of the Panchanan Mohapatra, son of Krupasindhu Mohapatra and Ramachandra Mohapatra son of Nath Charan Mohapatra in respect of CS Plot No.790 under CS Khata No.498 to an extent of Ac.0.45 dec. out of Ac.1.37 dec. Subsequently, said Laxmi Devya also executed RSD No.5843 dated 18th December, 1934 in favour of the Bholanath Mohapatra, Srikanta Mohapatra and Kedarnath Mohapatra sons of Mahindra Mohapatra and delivered possession to them. The aforesaid averments are relevant for just adjudication of the suit. After closure of the evidence of the Plaintiffs when the Defendant Nos.1, 3 and 5 were preparing to adduce evidence, the aforesaid fact came to their knowledge and accordingly, an application under Order VI Rule 17 CPC was filed for amendment of the plaint.
4. The amendment sought for will not change the nature and character of the suit. It is formal in nature. The proposed amendment is necessary for just adjudication of the suit, as it would assist learned trial Court for allotment of shares of the joint family property. Learned trial Court, only taking into consideration the restrictions under Proviso to Order VI Rule 17 CPC, rejected the application. He, therefore, submits that the amendment should be allowed for the interest of justice. Prejudice, if any, to be caused to the Plaintiffs, can be compensated by adequate cost. He, accordingly, prays for setting aside the impugned order under Annexure-5 and to direct learned trial Court to accept the amendment sought for.
5. Mr. Dash, learned counsel for Plaintiffs-Opposite Party Nos. 1 and 2 submits that he has filed his Vakalatnama on 22nd November, 2023. But the same is not available on record. Office shall trace out the same and tag it to the case record.
6. It is his submission that the restrictions in Proviso to Order VI Rule 17 CPC is mandatory in nature and the amendment sought for cannot be allowed. Further, the Plaintiffs in the plaint have admitted that Laxmi Devya had executed a Gift Deed. Thus, the amendment in that regard is not necessary to be incorporated in the written statement. It is his submission that at present, the Plaintiffs have already adduced evidence. The Defendants, without adducing evidence, are adopting dilatory practice to drag the litigation. He, however, submits that learned trial Court has committed no error in dismissing the application under Order VI Rule 17 CPC and prays for dismissal of the CMP.
7. Taking note of the submission made by learned counsel for the parties and on perusal of the petition for amendment at Annexure-2, it appears that the proposed amendment was within the knowledge of the Defendant Nos.1, 3 and 4 at the time of filing of the written statement. It is stated that they could not disclose the same to their advocate at the time of preparation of the written statement.
8. Proviso to Order VI Rule 17 CPC makes it clear that the amendment to the pleading can only be allowed in the event that the party seeking for such relief establishes that in spite of due diligence, it could not have raised the matter before commencement of the trial. The Proviso to Order VI Rule 17 CPC is mandatory in nature as submitted by Mr. Dash, learned counsel for Plaintiffs-Opposite Party Nos.1 and 2. On perusal of the petition for amendment, it is clear that the Defendant Nos.1, 3 and 5 could have incorporated the amendment sought for in the written statement prior to the commencement of the trial. Negligence of a party for incorporation of a pleading cannot be a ground to allow the petition for amendment. Moreover, learned counsel for Plaintiffs-Opposite Party Nos.1 and 2 submits that the Plaintiffs have admitted in the plaint that Laxmi Devya had executed a gift deed in the year 1934 in favour of the Panchanan Mohapatra and Ramchandra Mohapatra. Thus, amendment to that effect is not necessary to be incorporated in the written statement. Further alienation of the property in favour of the Bholanath Mohapatra, Srikanta Mohapatra and Kedarnath Mohapatra sons of Mahindra Mohapatra by said Laxmi Devya was known to the Defendants prior to commencement of the trial. It is also not stated in the petition for amendment that the same is necessary for just adjudication of the suit.
9. In view of the discussions made above, this Court finds that learned trial Court has committed no error in dismissing the petition filed by Defendant Nos.1, 3 and 5 for amendment of the written statement.
10. Accordingly, the CMP, being devoid of any merit, stands dismissed.
Urgent certified copy of this order be granted on proper application.
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