Allowed¶39

Keshab Behera v. Pabitra Sahoo

Orissa HC13 May 2025CMP/29/2018

Case brief

AI extract

What is this about?

Deemed service of notice; proviso to Order 5 Rule 9 CPC; acknowledgement card not received within thirty days; registered post acknowledgement due; amendment of plaint; Order 6 Rule 17 CPC; mutation ROR obtained during pendency by defendant nos. 7 to 9; amendment does not change nature and character of suit; ROR consequence of sale deed; impugned trial Court order set aside; consequential orders; completion of suit by end of 2025; C.S. No. 32 of 2016; Misc. Case No. 35 of 2018; CMP No. 29 of 2018; Orissa High Court; Savitri Ratho; Asian Resurfacing of Road Agency Pvt. Ltd. v. CBI (2018) 16 SCC 299.

What did the court decide?

Prayer for amendment of the plaint under Order 6 Rule 17 CPC allowed; impugned order of the trial Court set aside; consequential orders to be passed by the learned trial Court, which is requested to complete the suit by the end of 2025.

Keshab Behera Vs Pabitra Sahoo — Orissa HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether notice sent to opposite parties no. 1, 2, 7, 8 and 9, whose acknowledgement cards were not received within thirty days, may be deemed sufficient service under the proviso to Order 5 Rule 9 CPC. +1 more

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Court's answer

In view of the provisions of the proviso to Order 5, Rule 9 of the C.P.C. and the submissions of counsel, notice is deemed to be sufficient on opposite parties no. 1, 2, 7, 8 and 9.

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Ratio / Principle

The amendment prayed for will not change the nature and character of the suit, as the ROR is a consequence of the sale deed.

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Key takeaways

The impugned order rejecting the amendment is set aside and the prayer for amendment is allowed; consequential orders are to be passed by the learned trial Court.ratio¶39
As the suit is pending since 2016, the learned trial Court is requested to take steps to complete the suit by the end of 2025, if there is no legal impediment.ratio¶40

Detailed headnote1 paragraphs

High Court of Orissa at Cuttack (Savitri Ratho, J.), CMP No. 29 of 2018, order dated 13.05.2025, arising in C.S. No. 32 of 2016: (1) Notices to opposite parties no. 1, 2, 7, 8 and 9, sent to their correct address along with acknowledgement due, whose acknowledgement cards were not received even after more than thirty days, were held to be deemed sufficient service under the proviso to Order 5, Rule 9 CPC. (2) The plaintiff's application under Order 6 Rule 17 CPC to amend the plaint — rendered necessary because defendant nos. 7 to 9 obtained mutation ROR during pendency of the suit — was allowed: the amendment, the ROR being a consequence of the sale deed which is the real question in controversy, does not change the nature and character of the suit; the trial Court's order rejecting the amendment was set aside, consequential orders to be passed by the trial Court, which was requested to complete the suit by the end of 2025. Counsel for opposite party no. 3 raised no objection to the amendment. Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation, (2018) 16 SCC 299, was referred to by both counsel regarding commencement of trial despite the interim stay of 12.01.2018.

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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CMP No. 29 of 2018

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Keshab Behera ….. Petitioner Mr. Biswa Prakash Dhal, Advocate -versus- 1. Pabitra Sahoo 2. Pradyumna Sahoo 3 Prasant Kumar Sahoo 4. Rabinarayan Das 5. Ramesh Das

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6. Biranchi Das 7. Kamini Das 8. Kholana Das 9. Santilata Das 10. Balaram Mohanty …..

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11. Jaladhar Mohanty Opp. Parties

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Mr. A.K. Sahoo, Advocate (for O.P. Nos.3, 4, 5, 6 and 11)

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CORAM:

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HON’BLE MISS JUSTICE SAVITRI RATHO

ORDER

13.05.2025

Order No.

(Through hybrid Mode)

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05.

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Notice has been issued in this case to the opposite parties by

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order dated 12.01.2018 and in Misc. Case No. 35 of 2018 further proceeding in C.S. No. 32 of 2016 had been stayed. Thereafter, the

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matter was listed on 08.05.2025 and it was adjourned to today.

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Office note indicates that neither AD nor undelivered notice

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has been received from opposite parties no. 1, 2, 7, 8 and 9.

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Page 1 of 5

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Mr. Biswa Prakash Dhal, learned counsel for the petitioner submits that the contesting defendants are opposite parties no. 1, 2 and 3 and since Mr. A.K. Sahoo, learned counsel has appeared on behalf of opposite party no.3 and in view of the provisions of Order 9 Rule 5 proviso of the C.P.C., the notice to opposite parties no. 1, 2, 7, 8 and 9 may be deemed to be sufficient as the notices were sent at their correct address along with acknowledgement due and the acknowledgement cards have not been received even though more than thirty days have elapsed in the meanwhile.

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The provision of Order 5, Rule 9 proviso of the C.P.C. is extracted below:-

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“(9) Delivery of summons by Court.-

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(1) Where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall, unless the Court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by the Court.

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(2) The proper officer may be an officer of a Court other than that in which the suit is instituted, and, where he is such an officer, the summons may be sent to him in such manner as the Court may direct.

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xxx xxx xxx

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Page 2 of 5

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(5) When an acknowledgment or any other receipt purporting to be signed by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement purporting to have been made by a postal employee or by any person authorised by the courier service to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons by any other means specified in sub-rule (3) when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant:

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Provided that where the summons was properly addressed, pre-paid and duly sent by registered post acknowledgement due, the declaration referred to in this sub-rule shall be made notwithstanding the fact that the acknowledgement having been lost or mislaid, or for any other reason, has not been received by the Court within thirty days from the date of issue of summons.”

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In view of the provisions of the proviso to Order 5, Rule 9 of the C.P.C. and the submissions of the counsel, notice is deemed to be sufficient on opposite parties no. 1, 2, 7, 8 and 9.

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Although the matter is listed for orders on the submission of

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the learned counsel appearing on behalf of the petitioner and

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Page 3 of 5

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opposite party no.3 that the Civil Suit filed in 2016 is still pending in view of the pendency of this CMP, the matter is taken up for final disposal.

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Mr. Dhal, learned counsel for the petitioner submits that the plaintiff had filed the application under Order 6 Rule 17 of C.P.C. for amending the plaint as during pendency of the suit, defendant nos. 7 to 9 had obtained mutation ROR in their favour for which it became necessary to challenge the said mutation proceeding and the mutation ROR in the suit. But the learned trial Court rejected the application holding that the real question in controversy is the sale deed and as the ROR is the outcome of the sale deed, the amendment will only linger the proceeding.

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Mr. Sahoo, learned counsel for opposite party no.3 submits that he has no objection to the said prayer for amendment as the development has been taken place during pendency of the suit and will not change the nature and character of the suit in any manner.

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Both counsel submit that even though interim order has been passed on 12.01.2018 staying the further proceeding in the suit before hearing had commenced, but in view of the order of the Supreme Court in the case of Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation reported in (2018) 16

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Page 4 of 5

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SCC 299, the trial had commenced in between and one witness has been examined. Thereafter, the proceeding was again stalled. Both learned counsel pray that the suit may be targeted as it is of the year 2016.

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Considering the submissions of the learned counsel for the petitioner, the provisions of Order 6 Rule 17 of C.P.C. and the nature of amendment prayed for, I am of the view that it will not change the nature and character of the suit as the ROR is a consequence of the sale deed. The impugned order is set aside and prayer for amendment is allowed. Consequential orders to be passed by the learned trial Court.

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As the suit is pending since 2016, the learned trial Court is requested to take steps to complete the suit by the end of 2025, if there is no legal impediment.

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(Savitri Ratho) Judge

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Sukanta

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Signature Not Verified

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Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2025 21:10:24

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Page 5 of 5

Keshab Behera v. Pabitra Sahoo

Case brief

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Keshab Behera v. Pabitra Sahoo

Case brief

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