Dismissed

Gouranga Charan Khuntia v. Sudam Charan Khuntia

Orissa HC3 Feb 2023CMP/34/2023

Case brief

AI extract

What is this about?

This High Court dismissed the petitioner's challenge against a trial court order allowing an amendment to an injunction petition to include additional land details. The Court refused to interfere, holding the Petitioner could raise objections in consolidated proceedings without prejudice.

What did the court decide?

CMP No. 34 of 2023 disposed of; Petitioner's prayer for setting aside the impugned order rejected.

Gouranga Charan Khuntia Vs Sudam Charan Khuntia — Civil Procedure and Limitation | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 34 OF 2023

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Gouranga Charan Khuntia and others

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…. Petitioners

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Mr. Alok Kumar Mohanty, Advocate

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-versus-

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Sudam Charan Khuntia

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…. Opp. Party

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CORAM:

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JUSTICE K.R. MOHAPATRA

ORDER

Order No.

03.02.2023

This matter is taken up through hybrid mode.

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Order dated 12^th December, 2022 (Annexure-6) passed by

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learned Senior Civil Judge, Anandapur in I.A. No.35 of 2022 (arising out of C.S. No.80 of 2022) is under challenge in this CMP, whereby an application filed by the Plaintiff-Opposite Party under Order VI Rule 17 C.P.C. to amend the petition under Order XXXIX Rules 1 and 2 C.P.C., has been allowed.

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Mr. Mohanty, learned counsel for the Petitioner submits that I.A. No.35 of 2022 (arising out of C.S. No.80 of 2022) has

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been filed by the Plaintiff-Opposite Party under Order XXXIX Rules 1 and 2 C.P.C. The matter was keenly contested by the parties and vide order dated 18^th November, 2022 the argument was closed and the matter was posted to 30^th November, 2022 for delivery of orders on the petition for injunction. On the date of delivery of orders, an application under Order VI Rule 17 C.P.C. was filed by the Plaintiff-Opposite Party to incorporate the following proposed amendment:

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Page 1 of 3

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// 2 //

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“ Proposed Amendment

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The following land schedule may be inserted below the prayer and above the verification of main injunction petition in I.A. No.35 of 2022.

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Mouza- Biridi, Khata No.56, Plot No.401, Gharabari A.0.04 dec. which has been shown in consolidated order is 401, A.0.01 dec and 401/1, A.0.03 dec, total A.0.03 dec. Rasta.”

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Learned trial Court failed to appreciate that contents of a petition under Order XXXIX Rules 1 and 2 C.P.C. are not pleadings and that the Plaintiff-Opposite Party can file a separate petition to pursue his case in respect of any other plot and allowed the same in part vide order dated 12^th December, 2022 by directing to incorporate Khata No.56, Plot No.401 (Gharabari) to an extent of Ac.0.04 decimals in Mouza Biridi in the I.A.. By virtue of such amendment, the Petitioner is seriously prejudiced, as the entire exercise for adjudication of a petition under Order XXXIX Rules 1 and 2 C.P.C. has to be done afresh. Further, there will be delay in disposal of the petition under Order XXXIX Rules 1 and 2 C.P.C. He, therefore, prays for setting aside the impugned order under Annexure-6 and to pronounce the order in I.A. No.35 of 2022.

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Considering the submission made by learned counsel for the Petitioner, this Court finds that the property directed to be incorporated by way of amendment in the petition under Order XXXIX Rules 1 and 2 C.P.C., is available in the plaint schedule. True it is that the Plaintiff-Opposite Party could have filed a separate application under Order XXXIX Rules 1 and 2 C.P.C. in respect of the property directed to be incorporated by way of amendment, if any cause of action arose in respect of the said property. But, learned trial Court should not have entertained the

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Page 2 of 3

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// 3 //

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application on the date of pronouncement of the order in I.A. No.35 of 2022, as there was a scope for the Plaintiff-Opposite Party to file a separate application seeking for injunction. But that in no way prejudice the Petitioner, as they have liberty to file objection to the consolidated I.A. after amendment. In that view of the matter, this Court in not inclined to interfere with the impugned order under Annexure-6.

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However, the Petitioner shall be given opportunity to file objection to the consolidated I.A. and steps for early disposal of the I.A. shall be taken by learned trial Court giving opportunity of hearing to the parties concerned.

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Accordingly, the CMP is disposed of.

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Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
Judge

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Gouranga Charan Khuntia v. Sudam Charan Khuntia

Case brief

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Gouranga Charan Khuntia v. Sudam Charan Khuntia

Case brief

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