Jagannath Behera Vs Mantosh Pradhan

Instant petition is filed by the petitioner challenging the impugned order under Annexure-3 passed in connection with C.S. No.212 of 1992-I by learned Civil Judge, Balasore, whereby, an application for amendment of the plaint in terms of Order 6 Rule 17 C.P.C at his behest was denied for delay and laches and on such other grounds.

Mr. Mohapatra, learned counsel for the petitioner submits that the amendment is formal in nature and even though, there has been delay and trial had commenced with the examination of the witnesses from the side of the petitioner, the amendment, since, formal, should have been allowed. The amendment is in relation to the suit schedule property vis-a-vis ‘Ka’ schedule property with the insertion of a word ‘north’ after the word ‘ansh’. The suit is by the

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petitioner for declaration of right, title, interest and injunction in respect of the suit schedule property.

Upon a reading of the impugned order i.e. Annexure-3, the Court finds that learned Court below declined amendment of the plaint since the trial of the suit had already commenced by then and for the fact that the petitioner was not diligent. Since, there was considerable delay, as almost after thirty years of institution of the suit, such amendment was sought for, it was declined by the learned Court below. It is claimed that such amendment was found to be necessary only upon during and in course of hearing of the suit and hence, the request was made. It is submitted that the sketch map prepared and marked as exhibit through one of the witnesses, namely, P.W. 2 examined from the side of the petitioner was received without objection and hence, therefore, the amendment could not have been denied as the same is formal in nature.

Such amendment, as per Annexure-2 relates to insertion of the word ‘north’ in respect of ‘Ka’ schedule property after the word ‘ansh’, which in the considered view of the Court is unlikely to change nature and character of the suit. Of course, there has been delay in seeking amendment but it was quite necessary during the hearing of the suit. As earlier stated, the petitioner as the plaintiff has examined three witnesses with the evidence being closed. Notwithstanding, the commencement of the suit and as the sketch map referred to and relied upon by the petitioner did not receive any objection from the opposite parties, the Court does not find any reason or justification denying the amendment of the plaint. In other words, the learned Court below could not have declined the amendment of the plaint on any such ground. So, therefore, the conclusion is that the petitioner should be allowed to amend the

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plaint in terms of Annexure-2, as it is not likely to change or materially affect the nature and character of the suit.

In the result, the petition stands disposed of with a direction to learned Court below to accept a consolidated plaint in terms of the amendment thereof in accordance with Annexure-2 and thereafter, to proceed to deal with the suit ensuring its disposal according to law. As a necessary corollary, the impugned order under Annexure-3 passed in connection with C.S. No.212 of 1992-I by learned Civil Judge, Balasore is hereby set aside.