Dismissed

Kailash Ch.Dalai v. Babaji Senapati

Orissa HC3 Aug 2023WP(C)/26417/2011

Case brief

AI extract

What is this about?

In this writ petition, an application challenging the trial court's rejection of a petition to amend the plaint under Order VI Rule 17 CPC was dismissed. The High Court held that requesting a declaration of title altered the suit's character, so the trial court correctly rejected the amendment.

What did the court decide?

The writ petition challenging the impugned order dated 5.8.2011 stands dismissed.

Kailash Ch.Dalai Vs Babaji Senapati — Civil Procedure and Limitation | 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: 04-Aug-2023 10:16:55

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.P.(C) No. 26417 OF 2011

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Kailash Chandra Dalai …. Petitioner

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Mr. Satya Narayan Mishra, Advocate

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-versus-

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…. Babaji Senapati and others Opp. Parties None

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

03.08.2023

This matter is taken up through hybrid mode.

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Order dated 5^th August, 2011 (Annexure-2) passed by learned Additional Civil Judge (Junior Division), Basudevpur in C.S. No.125 of 2005 is under challenge in this writ petition, whereby an application filed by the Plaintiff-Petitioner under Order VI Rule 17 C.P.C., has been rejected.

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It is submitted by Mr. Mishra, learned counsel for the Petitioner that the suit was filed for permanent injunction. After filing of the written statement and counterclaim by the Defendants-Opposite Parties, the Petitioner felt it necessary to amend the plaint to implead the parties to the suit and also to incorporate the prayer for declaration of right, title and interest as well as pleading in support thereof. Learned trial Court holding that the Plaintiff in order to patch of the lacuna in not filing the written statement to the counterclaim filed by the Opposite Parties has filed the petition for amendment, rejected 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: 04-Aug-2023 10:16:55

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It is his submission that if the proposed amendment is allowed, it will not prejudice the Defendants. On the other hand, it will assist the Court for proper adjudication of the suit. He further submits that the amendment sought for are formal in nature and should have been allowed. He accordingly prays for setting aside the impugned order under Annexure-2.

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Although the Opposite Parties are represented through their learned counsel, none appears for them at the time of hearing.

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Considering the submission made by learned counsel for the Petitioner and on perusal of the record, it appears that the suit was filed in the year, 2005 and the petition for amendment was filed in the year, 2010, i.e., five years after filing of the plaint. On their appearance, the Defendants-Opposite Parties have filed their written statement along with counter claim praying for declaration of their right, title and interest over the suit property. Although the Plaintiff was given ample opportunity to file written statement to the counter claim but he failed to do so. Accordingly, he was debarred from filing the written statement vide order dated 31^st October, 2008. On perusal of the petition for amendment under Annexure-1, it appears that the cause of action for filing the plaint arose in view of the averments and prayer made in the written statement-cum-counter claim. Thus, it makes amply clear that the Petitioner in order to get over the order dated 31^st October, 2008 debarring from filing the written statement, filed the petition for amendment.

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Since the Petitioner has prayed for incorporation of a prayer for declaration of right, title and interest, it will certainly

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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: 04-Aug-2023 10:16:55

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change the nature and character of the suit. As such, the amendment sought for cannot be said to be formal in nature as submitted by learned counsel for the Petitioner.

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In that view of the matter, this Court is of the considered opinion that learned trial Court has committed no error in rejecting the petition for amendment.

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Accordingly, the writ petition being devoid of any merit stands dismissed.

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Since the suit is of the year, 2005, learned trial Court should make all endeavour to see that the same is disposed of at an early date, if it is still pending.

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Urgent certified copy of this order be granted on proper

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application.

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(K.R. Mohapatra)
Judge

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Kailash Ch.Dalai v. Babaji Senapati

Case brief

What is this about?

What did the court decide?

Kailash Ch.Dalai v. Babaji Senapati

Case brief

What is this about?

What did the court decide?

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