Dismissed

Golak Bihari Barik v. Ramakanta Barik and or

Orissa HC10 Jul 2019WP(C)/13569/2007

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the rejection of an amendment application under Order 6 Rule 17 CPC. The Court held the amendment was improper as it disclosed existing facts without adequate explanation for the delay, failing the test of due diligence.

What did the court decide?

Vacated interim direction and directed trial Court to conclude trial within four months.

Golak Bihari Barik Vs Ramakanta Barik and or — Property and Title | Orissa HC (2019)

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W.P.(C ) No.15369 of 2007

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10.07.2019

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Heard Shri P.K. Mohanty-2, learned counsel for the petitioner and P.K. Kar, learned counsel appearing for opp. party nos. 1 to 4.

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This Writ petition involves a challenge to the order involving rejection of an application under Order 6 Rule 17 of Code of Civil Procedure vide Annexure-4. From Pleadings, it discloses that the suit involved was filed in the year 2004 and while the evidence was in progress, an application under Order 6, Rule 17 of the Civil Procedure Code was filed seeking the proposed amendment indicated therein. Amendment application having been rejected giving rise to filing of the present writ petition.

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Considering the rival contention of the parties, the trial Court vide Annexure-4 rejected the application for amendment on the grounds mentioned therein. Advancing his argument, Shri Mohanty, learned counsel appearing for the petitioner taking this Court to the reason assigned in the amendment application, more particularly that the plaintiff was not aware of the facts which was brought by way of amendment at the time of filing of the suit. Such facts having been failed to be appreciated by the trial Court, the trial Court arrived at the wrong and illegal impugned order.

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Shri Mohanty further submitted that there is failure in appreciating the reason assigned in the amendment application and the trial Court has failed in appreciating that the plaintiff was a rustic and illiterate villager for which he has failed to bring such facts in the suit in time. Shri Mohanty further contended that for the amendment involved therein, there is relevancy in the determination of the suit. Therefore, the amendment ought to have been allowed.

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Relying on a decision of the Hon’ble Apex Court in the case of Revajeetu Builders & Developers Vs. Narayanaswamy & Sons & Others, 2009 (II ) OLR SC 815 , Shri Mohanty sought for applying the decision referred herein to the case of the petitioner.

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Learned counsel appearing for the opp. party nos.1 to 4 on the other hand in his opposition taking this Court to the reason assigned in the amendment petition, further for the disclosure made in the proposed amendment, submitted that the plaintiff by way of amendment admitted to have brought facts already existed at the time of filing of the suit. Learned counsel for the opp. parties further taking this Court to the amendment application, contended that there is no explanation at all indicating as to when and the mode of coming to know the development sought through proposed amendment. It is in the above premises, learned counsel for the opp. parties submitted that there is right rejection of the amendment application.

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Considering the rival contentions of the parties and going through the amendment application, this Court finds there is no dispute that the suit was filed in the year 2004 and the amendment application was filed in the year 2007. Looking to the proposed amendment in page 46 of the brief and reading through the same, this Court finds the disclosure therein are all existing facts as on the date of the filing of the suit , more particularly the case is of the year 2004. There is also no explanation in amendment application as to when such facts came to his notice and what is the mode of coming to know such facts. Taking into account the amendment of the provision at Order 6, Rule 17 of the C.P.C., this Court

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observes that for absence of reason bringing in such facts/pleadings much after the filing of the suit, this Court finds the petitioner has failed in satisfying the factum of due diligence. Going through the citations cited at Bar, this Court finds, looking to the stage of the suit and the application for amendment being moved keeping in view the amendment was sought after the commencement of the trial. This Court finds for the petitioner’s failure to satisfy the factum of due diligence, the decision cited at Bar has no application to the case of the petitioner.

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In the circumstances, this Court while declining to entertain the writ application for having no merit, vacate the interim direction dated 5.11.2007 and directs the trial Court to conclude the trial of C.S. No.11/2004-I within a period of four months from the date of communication of the order of this Court by either parties.

Golak Bihari Barik v. Ramakanta Barik and or

Case brief

What is this about?

What did the court decide?

Golak Bihari Barik v. Ramakanta Barik and or

Case brief

What is this about?

What did the court decide?

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