Allowed

Sk.Kutub and Anr. v. Abdul Rasid Khan

Orissa HC14 Aug 2023WP(C)/20885/2012

Case brief

AI extract

What is this about?

High Court allowed a writ petition seeking amendment of plaint under Order VI Rule 17 CPC. The High Court held that introducing subsequent mutation appeals did not alter the suit's nature and was necessary for just adjudication.

What did the court decide?

Amendment of plaint allowed; suit disposed of; plea for amendment set aside.

Sk.Kutub and Anr. Vs Abdul Rasid Khan — Property and Title | Orissa HC (2023)

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:43:41

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 20885 OF 2012

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Sk. Kutub and another

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…. Petitioners

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Mr. Dwarika Prasad Mohanty, Advocate

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-versus-

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…. Opp. Parties Mr. Debasish Samal, Advocate

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Abdul Rasid Khan and others

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

14.08.2023

This matter is taken up through hybrid mode.

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Order dated 16^th October, 2012 (Annexure-5) passed by learned Civil Judge (Junior Division), Balasore in C.S. No.93 of 1996 is under challenge in this writ petition, whereby an application filed under Order VI Rule 17 CPC for amendment of the plaint, has been rejected.

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Mr. Mohanty, learned counsel for the Petitioners submits that the suit has been filed for declaration of right, title, interest and for permanent injunction. During pendency of the suit, the Defendants filed Mutation Case Nos.112 & 113 of 1997 in respect of the case land. The said mutation cases were allowed. Being aggrieved by the order passed by the aforesaid mutation cases, the Plaintiffs-Petitioners preferred Mutation Appeal Nos.100 & 101 of 2003. Upon hearing the parties, both the mutation appeals were allowed vide order dated 15^th September, 2011. In view of the subsequent developments during pendency of the suit, the Plaintiffs-Petitioners filed an application under Order VI Rule 17 CPC for amendment of the plaint. The

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:43:41

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proposed amendments are only introduction of subsequent development and for correction of some typographical errors in the plaint. It does not change the nature and character of the suit. To the contrary, it will assist the Court for proper adjudication of the suit. Learned trial Court without appreciating the same, dismissed the petition holding that this Court is pressing hard for disposal of year old cases and the amendment sought for was within the knowledge of the Plaintiffs earlier. Thus, the Plaintiffs have not exercised due diligence in filing the petition for amendment. In the event, the petition for amendment is allowed, the Defendants will be highly prejudiced. It is his submission that such grounds are not sustainable in the eyes of law, as the amendment sought for for the purpose of introducing subsequent developments during pendency of the suit, which are essential for just adjudication.

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Mr. Samal, learned counsel for the Defendants-Opposite Parties objects to the same and contended that the amendment sought for was within the knowledge of the PlaintiffsPetitioners. The suit was filed in the year, 1996 and the mutation cases were filed in the year, 1997. The PlaintiffsPetitioners contested the mutation cases as well as the mutation appeals. Although the mutation appeals were allowed on 15^th September, 2011, but the petition for amendment was filed almost after one year. The amendment sought for are not necessary for just adjudication of the suit. Hence, he submits that learned trial Court has committed no error in dismissing the application.

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:43:41

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Considering the rival contentions of the parties, this Court finds that the amendment sought for are in respect of subsequent developments that occurred during pendency of the suit. The Plaintiffs-Petitioners by way of amendment sought to incorporate the developments that took place in respect of the suit property. During pendency of the suit, the Defendants filed the aforesaid mutation cases, which were allowed. Assailing the same, the Plaintiffs preferred two appeals, namely, Mutation Appeal Nos.100 & 101 of 2003, which were allowed vide order dated 15^th September, 2011. The Plaintiffs also sought for correction of some typographical errors in the plaint. The amendment sought for neither change the nature and character of the suit nor it takes the Defendants by surprise. The proposed amendment being the subsequent developments that took place during pendency of the suit are necessary to be brought in for just adjudication. The grounds on which learned trial Court rejected the petition are not sustainable.

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Accordingly, the impugned order under Annexure-5 is set aside and the petition for amendment of the plaint is allowed. The Plaintiffs shall file the consolidated plaint within a period of fifteen days hence serving copy thereof on the Defendants, who will be at liberty to file their additional written statement, if so advised.

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With the aforesaid observation and direction, this writ petition is disposed of.

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Since the suit is of the year, 1996, learned trial Court shall not grant liberal/long adjournment in the matter. He should also make an endeavour for early disposal of the suit. Parties are

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 14-Aug-2023 18:43:41

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directed to cooperate with learned trial Court for early disposal of the suit.

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Urgent certified copy of this order be granted on proper application.

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(K.R. Mohapatra) Judge

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Sk.Kutub and Anr. v. Abdul Rasid Khan

Case brief

What is this about?

What did the court decide?

Sk.Kutub and Anr. v. Abdul Rasid Khan

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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