Dismissed

Z.Josheph v. Pawan Kumar Sharma

Orissa HC6 May 2024CMP/108/2020

Case brief

AI extract

What is this about?

The High Court of Orissa disposed of a Consumer Mediation Petition without issuing notice to the opposite party. The Court set aside an order rejecting an amendment petition under Order VI Rule 17 CPC and remitted the matter for fresh adjudication.

What did the court decide?

Impugned order under Annexure-5 set aside; matter remitted to trial court for fresh adjudication of amendment petition with opportunity of hearing; interim stay order vacated.

Z.Josheph Vs Pawan Kumar Sharma — Property and Title | Orissa HC (2024)

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-May-2024 15:56:42

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 108 OF 2020

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Mr. S.S. Bhuyan, Advocate on behalf of Mr. Bibekananda Bhuyan, Advocate -versus-

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Pawan Kumar Sharma …. Opp. Party

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CORAM: JUSTICE K.R. MOHAPATRA

ORDER

Order No.

06.05.2024

This matter is taken up through hybrid mode.

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Although notice in the CMP was issued on 20^th March, 2020, no requisites as directed has yet been filed for issuance of notice to the Opposite Party.

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This Court while issuing notice also passed an interim order dated 20^th March, 2020 in I.A. No.113 of 2020 staying further proceeding of C.S. No.476 of 2009 pending before learned Civil Judge (Junior Division)-cum-JMFC, Jatni.

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Mr. Bhuyan, learned counsel for the Petitioners submits that immediately after passing the interim order, the Court remained closed due to outbreak of COVID-19, for which he could not take steps immediately. Due to oversight, the Petitioners also could not take steps for issuance of notice to the Opposite Party after situation was normalized. He, therefore, begs apology for the same and submits that if liberty is granted, requisites for issuance of notice to the Opposite Party shall be filed in course of the day.

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-May-2024 15:56:42

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Taking into consideration the nature of dispute involved, this Court feels that the matter can be disposed of even without issuing notice to the Opposite Party.

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Mr. Bhuyan, learned counsel for the Petitioners also consented to the same.

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Order dated 9^th December, 2019 (Annexure-5) passed by learned Civil Judge (Junior Division)-cum-JMFC, Jatni in Civil Suit No.476 of 2009 is under challenge in this CMP, whereby an application filed by the Plaintiff for amendment of the plaint under Order VI Rule 17 CPC, has been rejected.

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Mr. Bhuyan, learned counsel for the Petitioners submits that the suit has been filed for permanent injunction simplicitor. The Defendant-Opposite Party appeared and denied the title of the Plaintiff over the suit property. Hence, before settlement of issues, the Plaintiff sought for an amendment to the plaint for introducing a prayer for declaration of right, title and interest in view of the pleadings in the written statement. Learned trial Court without assigning any reason, passed the impugned order under Annexure-5 holding that if the petition for amendment is allowed, it will change the nature and character of the suit.

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Taking into consideration the submission made by learned counsel for the Petitioners and on perusal of the record, it appears that learned trial Court has not at all made any endeavour to delve into merits of the petition for amendment as well as objection filed to the same. The petition for amendment to the plaint was filed, when in the written statement the Defendant denied the title of the Plaintiff over the suit property.

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Signature Not Verified

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Digitally Signed Signed by: MADHUSMITA SAHOO Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 07-May-2024 15:56:42

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Although by allowing the amendment, nature and character of the suit may be changed, but if it is necessary of just adjudication of the suit, the Court may consider amendment of the pleadings. This aspect was not taken into consideration by learned trial Court while adjudicating the matter. In view of the above, this Court feels that the petition under Order VI Rule 17 CPC requires fresh consideration.

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Accordingly, the impugned order under Annexure-5 is set aside and the matter is remitted to learned trial Court for fresh adjudication of the petition under Order VI Rule 17 CPC giving opportunity of hearing to the parties concerned by passing a reasoned order. It is made clear that this Court has not expressed any opinion on the merits of the case of either of the parties.

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The CMP is accordingly disposed of.

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Interim order dated 20^th March, 2020 passed in I.A. No.113 of 2020 stands vacated.

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Since the CMP is disposed of without issuing notice to the Opposite Party, he is at liberty to seek for variation of this order, if he feels aggrieved.

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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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Z.Josheph v. Pawan Kumar Sharma

Case brief

What is this about?

What did the court decide?

Z.Josheph v. Pawan Kumar Sharma

Case brief

What is this about?

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