Kumudini Sahu v. Janaki Ghadei

W.P.(C) NO. 16938 OF 2008

16. 17.03.2017 The petitioner by filing this application under Article 227 of the Co
nstitution have called in question an order dated 11.10.2008 passed by learned Addl. Civil Jud
ge (Sr. Division), Balasore in C.S. No. 624/129 of 2001-I/2007 in the matter of an application
 under order 6 rule -17 of the Code of Civil Procedure in allowing the amendment of the plaint
 as prayed by the opposite party nos. 1 and 2 (plaintiffs).
 2. Heard learned counsel for the petitioners and opposite parties.

 Perused the order in question along with the averments made in the plaint, wri
tten statement as well as the petition under order -6 rule 17 of the Code and objection filed
thereto.

 3. The prayer for amendment of the plaint having been filed after closure
 of the evidence of the plaintiffs, the same faced resistance on the ground that it would chan
ge the nature and character of the suit.

 The trial court considering stage of the suit initially has found it to be hav
ing some force in the sense that it may prolong the lis. But in view of an undertaking in writ
ing given by the plaintiffs that they would adduce no further evidence as the amendment is cla
rificatory in nature and as a measure to provide better description of the property involved,
the trial court having concluded that no such prejudice would be caused to the defendant-petit
ioners if so provided with the scope to file additional written statement as also to lead evid
ence on their own, has finally gone to allow the prayer.

 4. Careful reading being given to the amendments as proposed and as has b
een allowed, it is seen that those relate to the description of the properties being the subje
ct matter of the suit. The plaintiffs having stated that there arises no need for them to addu
ce further evidence, they have thus asserted that whatever the evidence are there on record as
 have been led by them are enough for their case being in consonance with said amendment. The
defendants have not only cross-examined the witnesses examined by the plaintiffs but also are
going to get full opportunity to file additional written statement and lead their evidence. Al
l these rather lead to say that the amendments are nothing new and are not going to cause any
surprise to the defendants. The apprehansion of the defendants that it is going to change the
nature and character of the suit, for that reason also does not appear to be well founded. Sin
ce the defendants are getting the scope to file additional written statement and lead evidence
, there also arises no question of any prejudice being caused to them in the matter. However,
to remove further apprehension in overruling the scope to claim prejudice, in my considered vi
ew they ought to have been further provided with the opportunity to cross-examine any of the w
itnesses so examined by the plaintiffs if they so desire.