Dismissed

Surendra Ch.Tripathy v. Naresh Chc.Tripathy

Orissa HC22 Nov 2023WP(C)/9462/2011

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed a writ petition challenging a trial court order that clarified a typographical error in the schedule of an interim injunction application. The Court held the amendment was merely explanatory and permissible.

What did the court decide?

The writ petition was dismissed and an interim order dated 4th May, 2011 was vacated.

Surendra Ch.Tripathy Vs Naresh Chc.Tripathy — Property and Title | Orissa HC (2023)

¶1

Signature Not Verified

¶2

Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Nov-2023 12:19:13

¶3

IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 9462 OF 2011 Suresh Chandra Tripathy @ Mishra …. Petitioner

¶4

…. Petitioner Mr. Bikram Rath, Advocate

¶5

-versus-

¶6

…. Naresh Chandra Tripathy Opp. Party Mr. Sarojananda Mishra, Advocate

¶7

CORAM:

¶8

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

22.11.2023

This matter is taken up through hybrid mode.

¶14

Order dated 21^st March, 2011 (Annexure-9) passed by learned Civil Judge (Senior Division), Athagarh in I.A. No.13 of 2009 (arising out of C.S. No.23 of 2009), whereby an amendment to the schedule of the I.A. filed by the PlaintiffOpposite Party, has been allowed.

¶15

Mr. Rath, learned counsel for the Petitioner submits that along with the plaint in C.S. No.23 of 2009, the PlaintiffOpposite Party filed I.A. No.13 of 2009 under Order XXXIX Rules 1 and 2 CPC. Along with other plots, the Opposite Party had prayed for an order of temporary injunction in respect of Plot No.599/289/1333 under Khata No.55. Upon hearing learned counsel for the parties, the interim application filed under Order XXXIX Rules 1 and 2 CPC was allowed directing the parties to maintain status quo over the suit property. The PlaintiffOpposite Party has also filed an application under Order XXXIX Rule 2-A CPC alleging violation of the said order. In course of hearing of the petition under Order XXXIX Rule 2-A CPC in I.A. No.20 of 2009, the Opposite Party filed an application for

¶16

Page 1 of 4

¶17

Signature Not Verified

¶18

// 2 //

¶19

Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Nov-2023 12:19:13

¶20

amendment of the schedule of the I.A. by substituting Plot No. 599/1289/1333 of Khata No.55. Although the application was disposed of by then, learned trial Court entertaining the application for amendment of schedule of the interim application, allowed the same. Hence, the writ petition has been filed.

¶21

It is submitted by learned counsel for the Petitioner that there is no scope to entertain an application for amendment of schedule of the interim application after its disposal. In order to harass the Petitioner, the amendment to the schedule of the I.A. was sought for. Learned trial Court holding that it was only a typographical error, allowed the application. By allowing such application, learned trial Court did not take into consideration the repercussions of such amendment. By such amendment, the Petitioner is seriously prejudiced. Such an application is also not maintainable in the eye of law. Accordingly, he prays for setting aside the impugned order under Annexure-9.

¶22

Mr. Mishra, learned counsel for the Plaintiff-Opposite Party vehemently objects to the same. It is his contention that there is no suit plot vide Plot No.599/289/1333. It is only suit Plot No.599/1289/1333. At the time of drafting of the interim application, such a typographical error was crept in. The same was a bona fide mistake and a typographical error only and it could not be realized till the Petitioner raised objection in the petition under Order XXXIX Rule 2-A CPC (I.A. No.20 of 2009) that he has made construction only on Plot No.599/1289/1333 and not the schedule plot of the I.A. It is his contention that there is no dispute with regard to the other plots

¶23

Page 2 of 4

¶24

Signature Not Verified

¶25

// 3 //

¶26

Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Nov-2023 12:19:13

¶27

mentioned in the schedule of the I.A.. But, the aforesaid plot has been inadvertently stated in the I.A. and the Petitioner taking undue advantage of the same has violated the order. There is no suit plot as Plot No.599/289/1333. It is only the suit Plot No.599/1289/1333. Although the Plaintiff has admitted in his cross-examination that the plot number would be the plot number as wrongly mentioned in the I.A., but it was a bona fide mistake and learned trial Court realizing the same only clarified it in the impugned order under Annexure-9. Learned trial Court has also given liberty to the Petitioner to make a prayer to recall the witnesses for further examination, if he is so advised. In that view of the matter, no prejudice has been caused to the Petitioner by such clarification/amendment. He, therefore, prays for dismissal of the writ petition.

¶28

Considering the submissions made by learned counsel for the parties, this Court finds that amongst other, Plot No.599/1289/1333 of Khata No.55 is also a schedule plot of the suit. The Plaintiff-Opposite Party has never claimed any relief in respect of Plot No.599/289/1333 as wrongly mentioned in the I.A. No doubt, the Plaintiff in his cross-examination has admitted that schedule plot of the I.A. to be Plot No.599/289/1333 of Khata No.55 to an extent of Ac.0.04 decimals, but there is no such plot available and the Plaintiff does not claim any relief in respect of such plot. In fact, the suit schedule plot is Plot No.599/1289/1333 of Khata No.55 to an extent of Ac.0.04 decimals. Thus, it appears that it was a typographical error in the schedule of the interim application,

¶29

Page 3 of 4

¶30

Signature Not Verified

¶31

// 4 //

¶32

Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 23-Nov-2023 12:19:13

¶33

i.e., I.A. No.13 of 2009 filed under Order XXXIX Rules 1 and 2 CPC.

¶34

In view of the above, this Court is of the considered opinion that although in the impugned order under Annexure-9 learned trial Court has stated that it is an amendment of the schedule of the petition in the I.A., but in essence, it is a clarification of the description of the land in the schedule of the I.A., which is permissible in law. Thus, the submission of learned counsel for the Petitioner that such an application is not maintainable after disposal of the I.A., is not sustainable. As such, I find no infirmity in the impugned order under Annexure-9.

¶35

Accordingly, the writ petition stands dismissed.

¶36

However, it is made clear that since the Petitioner has been given the liberty in the impugned order to pray for recall of the witness for further cross-examination, learned trial Court may consider the same, if such an application is filed and the suit is still pending.

¶37

Interim order dated 4^th May, 2011 passed in Misc. Case No.5856 of 2011 stands vacated.

¶38

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

¶39

¶40

(K.R. Mohapatra) Judge

¶41

Page 4 of 4

Surendra Ch.Tripathy v. Naresh Chc.Tripathy

Case brief

What is this about?

What did the court decide?

Surendra Ch.Tripathy v. Naresh Chc.Tripathy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Arjun Charan Jena Vs Bhagyashree Sasmita Jena

Rasik Mohan Satpathy Vs Rabi N.Satpathy

Anil Kumar Agrawal Vs Harischandra Khuas

Kedareswar Samantara Vs Md,Cesco Ltd.

Minakumari Baral Vs State of Odisha

Muralidhar Behera Vs Ceo,Tpnodl, Balasore