Gobinda Moharana Vs Bhaskar Sahoo

b)The possession of the plaintiffs over the suit property be confirmed and incase of dispossession during the pendency of the suit recovery of possession be given to them.

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c)Decree of permanent injunction be passed against the defendants restraining them from causing any kind or disturbance in possession of the plaintiffs over the suit property.

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d) The cost of the suit the defendant be directed to pay to the plaintiff.

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e) Any other relief deemed just and proper be also granted.”

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The defendants, after entering appearance filed written statement. The plaintiffs also filed an application under Order XXXIX Rules 1 and 2 of CPC to restrain the defendants from

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entering into the suit property. The said application, being registered as I.A. No.55 of 2018 was rejected. The plaintiffs thereafter, filed an application for amendment of the plaint as per Order VI Rule 17 of CPC. The defendants filed their objection. The application came to be rejected by the Court below vide order dated 16.02.2023. Said order is impugned in the present CMP.

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Heard Mr. S. Roy, learned counsel for the plaintiffspetitioners and Mr. B.B. Mishra, learned counsel appearing for defendants-Opposite Parties. 5. Mr. Roy would submit that when the cause of action arose after rejection of the application for under Order XXXIX Rules 1 and 2, the Court below could not have rejected the application for amendment. Further, the plaintiffs having already claimed the relief of recovery of possession, in case they are found to be dispossessed during pendency of the suit, the proposed amendment could not have been rejected by the Court below on the ground that it seeks to introduce a new relief altogether.

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Mr. Mishra appearing for the defendants, objects to the contentions raised by submitting that the application for amendment was filed belatedly, after settlement of issues and at the stage of hearing of the suit. Secondly, the plaintiffs have prayed to amend the cause title to include the valuation of the additional relief sought for, which is not permissible. 7. After hearing learned counsel for the parties and on going through the impugned order, this Court finds that the plaintiffs had already sought for the following relief under paragraph-8(b), which is reproduced below:-

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“ b)The possession of the plaintiffs over the suit

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property be confirmed and in case of dispossession

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during the pendency of the suit recovery of possession be given to them.”

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Therefore, it is not a case of seeking a relief foreign to the suit. That apart, as averred in the application for amendment, it is the plaintiffs case that after dismissal of the application under Order XXXIX Rules 1 and 2 the defendants started construction over the suit land and in fact completed such construction. This gave rise to the cause of action to amend the plaint. The Court below appears to have proceeded on the notion that the application for injunction having been rejected, the proposed amendment would create a new cause of action and change the nature and character of the suit. According to the considered view of this Court, the above reasoning cannot be sustained. This is being said for the reason that the plaintiffs’ specific case is that the defendants started and completed construction over the suit land after rejection of the application for injunction. Therefore, prima facie, it can be said that the cause of action arose after dismissal of the application for injunction. Whether the plaintiffs are able to prove their contentions or not is a matter for trial but at this stage, the plaintiffs’ cannot be precluded from bringing on record the developments that have a material bearing on the lis between the parties. Moreover, the plaintiffs’ have already claimed the relief of recovery of possession, in case they are found to be dispossessed during pendency of the suit. Since they claim to have been dispossessed during pendency of the suit, there is no legal impediment in permitting them to seek the specific relief of recovery of possession.

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For the foregoing reasons therefore, this Court is of the considered view that the proposed amendment ought to have been

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allowed. The impugned order is therefore, set aside. The Court below is directed to pass necessary orders allowing the petition for amendment of the plaint. It goes without saying that the defendant shall be at liberty to file his additional written statement whereupon, the Court may frame additional issues.

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As regards the proposed amendment regarding valuation of the additional relief sought, the petitioner shall be at liberty to file a better application to incorporate the same at the appropriate place in the plaint. It goes without saying that the Trial Court shall not be influenced by any observations made by this Court in the present order.

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( Sashikanta Mishra)

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Judge

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Puspanjali

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Signature Not Verified

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Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 05-Aug-2025 11:21:42

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Gobinda Moharana v. Bhaskar Sahoo

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Gobinda Moharana v. Bhaskar Sahoo

Case brief

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