The High Court of Orissa dismissed a petition seeking to set aside the trial court's order rejecting an amendment to a written statement. The amendment sought to reclassify documents as mortgaged deeds instead of sale deeds post-evidence closure.
The CMP seeking to set aside the order rejecting the amendment petition stands dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Signature Not Verified
Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Nov-2023 10:23:54
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No. 1657 OF 2016
(An application under Article 227 of the Constitution of India)
Arun Parida Maheswar Das and others
…… Petitioner
-Versus-
.…… Opp. Parties
Advocates appeared :
For Petitioner : Mr. G.N. Parida, Advocate
on behalf of
Mr. Soumya Mishra, Advocate
For Opp. Parties : Mr. Budhiram Das, Advocate
(For Opp. Party Nos.1 to 9)
CORAM :
MR. JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 13.11.2023
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JUDGMENT
K.R. Mohapatra, J.
1. This matter is taken up through hybrid mode.
2. Order dated 6th October, 2016 (Annexure-8) passed by learned Civil Judge (Junior Division), Betnoti, Mayurbhanj in C.S. No.253 of 2001 is under challenge in this CMP, whereby an application under Order VI Rule 17 CPC filed by the Defendant
CMP No. 1657 OF 2016 Page 1 of 7
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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Nov-2023 10:23:54
No.2-Petitioner for amendment of the written statement, has been rejected.
3. Mr. Parida, learned counsel being authorized by Mr. Mishra, learned counsel for the Petitioner submits that the suit has been filed for declaration of right, title and interest of the Plaintiffs over the suit property, correction of R.O.R., recovery of possession of the suit land from Defendant No.2 as well as for permanent injunction. After closure of evidence from both the sides, the Defendant No.2-Petitioner filed an application under Order XVIII Rule 17 CPC to recall D.W.1 to lead further evidence with regard to execution of the sale deeds, which were in the nature of mortgaged deeds. The said application was rejected vide order dated 13th August, 2010 under Annexure-5. Assailing the same, the Petitioner preferred W.P.(C) No.14722 of 2010 and this Court vide order dated 9th November, 2015 dismissed the said writ petition holding as under:
“During course of argument, copy of the written statement was produced before this Court and petitioner substantiated his argument relying particularly on paragraph-11 of the written statement. Reading of Paragraph-11 of the written statement nowhere discloses any pleading regarding the sale deed sought to be introduced. Law is fairly settled that no evidence is permitted in absence of pleading in the written statement. In absence of any pleading with regard to the document sought to be incorporated, this Court finds evidence on such document is wholly impermissible and accordingly the reasons assigned by the trial court cannot be found faulted. Accordingly, there is no scope for interference in the impugned order.
The writ petition is accordingly dismissed.”
4. Since this Court was not inclined to entertain the application, as no evidence could be permitted to be adduced
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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Nov-2023 10:23:54
without a pleading, an application under Order VI Rule 17 CPC was filed by the Defendant No.2-Petitioner to introduce a pleading with regard to R.S.D. No.302 dated 5th February, 1958 executed by Khetramohan Parida, father of Defendant No.1, R.S.D No.3123 dated 12th May, 1961 and R.S.D. No.3911 dated 4th June, 1962, executed by Defendant No.1 and late Dinabandhu Parida in favour of the Plaintiffs. Learned trial Court holding that the evidence from both the sides have already been closed and the suit is at the stage of argument, rejected the petition.
5. It is also observed by learned trial Court that the said mortgaged deeds will not decide the real question in controversy between the parties and if at all the said documents which were executed in the year, 1961 was with the Defendant No.2 as admitted by him, then it would have been mentioned in the written statement. Thus, holding that the case of the Defendant No.2-Petitioner does not come under the proviso to Order VI Rule 17 CPC, learned trial Court rejected the petition. Hence, this CMP has been filed.
6. It is submitted by learned counsel for the Petitioner that the documents are necessary for just adjudication of the suit. Mention has been made about those documents at Paragraphs-10 and 11 of the written statement filed by the Petitioner. Mr. Parida, learned counsel also brings notice of this Court to the prayer in the counter-claim stating that the Defendant No.2Petitioner has prayed for declaration of the sale deed, i.e., R.S.D. No.302 dated 5th February, 1958 executed by Khetra Parida in favour of the Plaintiffs, R.S.D. No.3123 dated 12th May, 1961
CMP No. 1657 OF 2016 Page 3 of 7
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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Nov-2023 10:23:54
and R.S.D. No.3911 dated 4th June, 1962 to be void and not acted upon. Although the Defendant No.2 was in possession of those documents, it could not be produced at the time of adducing evidence in the matter. As such, after closure of evidence, an application under Order XVIII Rule 17 CPC was filed to recall D.W.1 to adduce evidence in respect of those documents. The said application was rejected and was confirmed by this Court in W.P.(C) No.14722 of 2010 under Annexure-6 holding that no documents can be admitted in evidence without pleading to that effect. Accordingly, the petition under Order VI Rule 17 was filed.
7. Mr. Parida, learned counsel for the Petitioner also relied upon the case law in Usha Balashaheb Swami and others –vKiran Appaso Swami and others , reported in (2007) 5 SCC 602, wherein at Paragraphs-18 and 19, it is held as under:
“18. It is now well-settled by various decisions of this Court as well as those by High Courts that the courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bonafide one. In this connection, the observation of the Privy Council in the case of Ma Shwe Mya v. Maung Mo Hnaung may be taken note of. The Privy Council observed:
"All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit."
CMP No. 1657 OF 2016 Page 4 of 7
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Signature Not Verified
Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Nov-2023 10:23:54
19. It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable. ”
8. It is submitted that the amendment sought for will not change the nature and character of the suit. Those are formal in nature and will assist the Court for proper adjudication of the suit. The Plaintiffs will not be taken by surprise, if the amendment is allowed, as reference to those documents has already been made in the plaint as well as in the written statement. For just adjudication of the suit, the amendment is necessary. He, therefore, prays for setting aside the impugned order under Annexure-8 and to direct learned trial Court to allow the amendment sought for.
9. Mr. Das, learned counsel for the Plaintiffs-Opposite Party Nos.1 to 9 submits that the averments both in the plaint as well as in the written statement filed by the Defendant No.2 clearly disclose that the documents sought to be introduced by proposed amendment are the sale deeds. By way of amendment, the Petitioner sought to describe those documents as mortgaged deeds. As rightly held by learned trial Court, those documents are not necessary for proper adjudication of the suit. Further, reference to those documents have already made in the pleadings
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Signature Not Verified
Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Nov-2023 10:23:54
of both the parties. However, by introducing the pleading, the Defendant No.2 tried to introduce a story that those deeds were in fact mortgaged deeds and not sale deeds. If at all such amendment is allowed, it will certainly prejudice the Plaintiffs, as evidence from both the sides has already been closed. There is no material on record to show that the proposed amendment was not within the knowledge of Defendant No.2. Hence, he submits that learned trial Court have committed no error in dismissing the petition under Order VI Rule 17 CPC. He, therefore, prays for dismissal of the CMP.
10. Considering the rival contentions of the parties, this Court finds that the proposed amendment were sought to be introduced after closure of evidence from both the sides. On perusal of the petition for amendment at Annexure-7, it appears that the same was in the knowledge of Defendant No.2 at the time of filing of the written statement. The documents were also available with him at the time of filing of the written statement along with counter-claim. By virtue of proposed amendment, the Defendant No.2 sought to introduce a story that those documents are, in fact, mortgaged deeds. If at all such an amendment is allowed, it will change the basis of the claim of the Defendant No.2, as set out in Paragraphs-10 and 11 of the written statement.
11. Basing upon the available pleading, parties have led their evidence. The suit is at the stage of argument. The Defendant No.2 has not made out any case to bring the proposed amendment within the ambit of proviso to Order VI Rule 17
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Signature Not Verified
Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Nov-2023 10:23:54
CPC. There is no dispute to the case law cited by Mr. Parida, learned counsel for the Petitioner, but the same is of no assistance to this case, as the Petitioner has not made out any case under the proviso to Order VI Rule 17 CPC. As such, I find no infirmity in the impugned order under Annexure-8.
12. Accordingly, the CMP being devoid of any merit stands dismissed.
13. Interim order dated 8th November, 2016 passed in Misc. Case No.1747 of 2016 stands vacated.
(K.R. Mohapatra)
Judge
Orissa High Court, Cuttack,
Dated 13 th November, 2023/Madhu
CMP No. 1657 OF 2016 Page 7 of 7
2 issues framed by the court
Whether an application under Order VI Rule 17 CPC to amend a written statement to change a description of documents from sale deeds to mortgaged deeds after closure of evidence is maintainable.
Whether the proposed amendment changes the nature and subject matter of the claim to the detriment of the plaintiff.
Colour shows how this judgement treated each authority
Usha Balashaheb Swami and others –vKiran Appaso Swami and othersReferred¶36
Usha Balashaheb Swami and others –vKiran Appaso Swami and others (2007) 5 SCC 602 · Who else cites this
Ma Shwe Mya v. Maung Mo HnaungReferred¶37
Ma Shwe Mya v. Maung Mo Hnaung
1 provisions across 1 enactments
Arun Parida Maheswar Das
Opposite Party Nos.1 to 9
K.R. Mohapatra
As recorded by the court registry
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