Dismissed¶¶91

Janaki Jena v. Dinabandhu @ Biswambara Jena

Civil Procedure – Amendment of plaint

Orissa HC22 Oct 2025CMP/813/2025

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Case brief

AI extract

What is this about?

Orissa High Court, Cuttack; CMP No.813 of 2025; Justice B.P. Routray; Article 227; amendment of plaint refused at argument stage; second amendment petition after earlier rejection dated 17-May-2024 attained finality; partition suit; sikim tenancy; Sikim Khata No.3 and 4; CS Khata No.90; Lot No.2 schedule B properties; Exts.7 and 8 plot indexes; due diligence burden after commencement of trial; LIC v. Sanjeev Builders (2022) 16 SCC 1 relied on; Vijay Gupta v. Gaginder Kr. Gandhi referred; impugned order confirmed; CMP dismissed.

What did the court decide?

The earlier rejection order dated 17th May, 2024 was never challenged and attained finality; it touched the merits of the amendment prayer, so the Plaintiffs' contention that the rejection was merely technical is not acceptable. ¶¶39

Janaki Jena Vs Dinabandhu @ Biswambara Jena — Writ and Judicial Review | Orissa HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the Plaintiffs' prayer to amend the plaint — inserting that Rasika Jena and others were recorded as Sikim Tenants under Sikim Khata No.3 and 4, and changing the name of the common ancestor to Bali @ Banamali Jena — should be allowed at the stage of argument. +2 more

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Court's answer

Once the trial has commenced, it is incumbent upon the party seeking amendment to discharge the satisfaction that despite due diligence the matter could not be brought on record in time; here the suit is at the stage of argument and the Plaintiffs offered no explanation beyond absence of knowledge for want of specific documents.

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Ratio / Principle

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Key takeaways

The plot indexes under Exts.7 and 8 do not show the plots under Lot No.2 to be connected to Sikim Khata No.3 and 4.ratio¶¶46
No connection being shown between the properties under Lot No.2 and sikim tenancy, it would be hard to believe prima facie the Plaintiffs' contention to take such plea by way of amendment at this belated stage of argument.ratio¶¶47
Even now the Plaintiffs have failed to bring any document establishing the connection of the Lot No.2 properties with Sikim Khata No.3 and 4.

Detailed headnote1 paragraphs

Civil Procedure — Amendment of plaint — Application under Article 227 against refusal of amendment by Senior Civil Judge, Balasore in CS No.1750/1978 of 2021 (order dated 12th March, 2025) — Partition suit at the stage of argument; second attempt to amend after an earlier rejection dated 17th May, 2024 which was never challenged and had attained finality — Rejection held to touch the merits, not merely technical — Proposed amendments sought to record Rasika Jena and others as sikim tenants under Sikim Khata Nos.3 & 4 and to change the common ancestor's name to Bali @ Banamali Jena — No trace of material linking the Lot No.2 properties of suit schedule B to Sikim Khata Nos.3 & 4; plot indexes Exts.7 & 8 showed no connection, while Lot No.1 stood recorded jointly and Lot No.2 exclusively in the defendants' father's name — Principles in Life Insurance Corporation of India v. Sanjeev Builders Private Limited, (2022) 16 SCC 1 relied on; burden on the applicant after commencement of trial to show due diligence not discharged — Impugned order confirmed; CMP dismissed (B.P. Routray, J.).

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.813 of 2025

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(In the matter of an application under Article 227 of the Constitution of India)

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Smt. Janaki Jena and Another …. Petitioners

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-versus-

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Dinabandhu @ Biswambara Jena … Opposite Parties and Others

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Advocate(s) appeared in this case:-

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For Petitioner : Ms. Prajna Sarita Mohanty, Advocate For Opp. Parties : Sri Devi Prasad Mohapatra, Advocate (Balasore)

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CORAM: JUSTICE B.P. ROUTRAY JUDGMENT

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22^nd October, 2025

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B.P. Routray, J.

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1 . Heard Ms. P.S. Mohanty, learned counsel for the Petitioners and

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Sri D.P. Mohapatra, learned counsel for Opposite Parties.

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2. Present CMP is directed against order dated 12^th March, 2025 of

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learned Senior Civil Judge, Balasore passed in CS No.1750/1978 of

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CMP No.813 of 2025

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Page 1 of 10

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Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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2021, wherein the prayer for amendment of the plaint has been refused.

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3. Present Petitioners, who are the Plaintiffs, have filed the suit praying for partition and at the stage of argument they filed a petition praying to insert certain facts that Rasika Jena and others were recorded as Sikim Tenants under Sikim Khata No.3 and 4. The other aspect of prayer for amendment to change the name of common ancestor of the parties as Bali @ Banamali Jena has also been rejected. Such prayer for amendment has been rejected on two grounds, first, the same was previously rejected vide order dated 17^th May, 2024 of the trial court and secondly, the properties under Lot No.2 of suit schedule B properties are no way traced to be connected with Sikim Khata No.3 and 4.

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4. Ms. Mohanty, learned counsel for the Plaintiffs submits that admittedly the properties under Lot No.1 of suit schedule B properties are recorded as joint family property and there is no dispute over the same. So far the properties under Lot No.2 is concerned, the same were covered under Sikim Khata No.3 and 4 to describe the status of common ancestor Banamali Jena as a sikim tenant under Manmathnath Dey and Manoranjan Dey who were

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CMP No.813 of 2025

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Page 2 of 10

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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recorded owners of CS Khata No.90. Therefore the prayer for amendment of the plaint as sought by the plaintiffs, though at the stage of argument, should be allowed since it was not within their knowledge previously until such documents were obtained to justify the same. It is further submitted by Ms. Mohanty that the earlier rejection of the prayer for amendment of the plaintiffs was on the technical ground that the Plaintiffs could not be able to produce substantial documents in support of their plea to insert the amendment and as such, the previous rejection order of the amendment prayer will not operate as a bar in respect of the present prayer to amend the plaint.

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5. Conversely, it is submitted by Mr. Mohapatra, learned counsel

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for the Opposite Parties that it is the initial stand taken in the plaint that both the properties under Lot No.1 and Lot No.2 were being purchased by the common ancestor in addition to the plea of sikim tenancy of the common ancestor. Therefore when the properties under Lot No.2 is claimed to be self-acquired properties of the defendants purchased from the recorded owner in CS Khata No.90, such a plea taken at this belated stage could not be admissible to be inserted by way of amendment. It is further submitted that there is no

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CMP No.813 of 2025

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Page 3 of 10

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Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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material produced on record to reveal any connection of the properties under Lot No.2 to connect the same to sikim Khata No.3

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and 4 to assert such plea made on behalf of the plaintiffs.

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6. Admittedly the parties in the suit have adduced their evidence and the suit is now at the stage of argument. At such belated stage the prayer for amendment was sought for the second time after it was earlier rejected on 17^th May, 2024 by the trial court. It is true that the earlier order of rejection of the prayer for amendment dated 17^th May, 2024 was never challenged by either party and the same has attained finality. The submission made by the plaintiffs that the same was technical being rejected on the ground for non-submission of relevant documents is not seen a convincing ground to accept such contention of the plaintiffs. The order dated 17^th May, 2024 as produced by the defendants reveals that the trial court while dealing with said earlier prayer for amendment of the plaintiffs have observed that the plaintiffs have not relied on any document or material in support of such proposed amendment and there is no material evidence which prompted the plaintiffs to file the petition for amendment. It is also observed by the trial court that the plaintiffs have not shown any cause of action to file the petition to

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CMP No.813 of 2025

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Page 4 of 10

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Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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amend the plaint. Therefore the contention of the plaintiffs that the earlier order of rejection was a technical one is not found acceptable since the earlier order as stated above is touching the merit of the prayer.

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7. In respect of the other contention that properties under Lot No.2 of suit schedule B properties are relating to Sikim Khata No.3 and 4 in order to bring them within the fold of joint family property contrary to the MS Record of Right prepared in the name of father of defendants, there is no trace of material to link such properties with Sikim Khata No.3 and 4. Admittedly CS Khata No.90 is consisting

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of 12 plots, out of which 6 plots were in Lot No.1 and other 6 plots were in Lot No.2 of suit schedule B properties. When the properties under Lot No.1 were recorded jointly the properties in Lot No.2 have been recorded exclusively in the name of father of the defendants. According to the claim of the defendants those properties covered in Lot No.2 were purchased by their father from the recorded owner of CS Khata No.90. Apart from this, the dispute with regard to such properties mentioned in Lot No.2 needs to show some connection with Sikim Khata No.3 and 4 as claimed by the plaintiffs in order to accept their prayer for amendment. Admittedly the plot indexes

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CMP No.813 of 2025

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Page 5 of 10

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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under Ext.7 and 8 are not showing such Plots under Lot No.2 to be connected to Sikim Khata No.3 and 4 and therefore, the initial plea

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was taken in the plaint that the same were purchased by the common ancestor in addition to the plea of Sikim tenancy. Moreover, when no connection is shown with regard to properties under Lot No.2 to Sikim tenancy it would be hard to believe prima facie the contention of the plaintiffs to take such plea by way of amendment at this belated stage of argument.

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8. The general principles as to the amendments of plaint are concerned, the same have been settled in plethora of decisions of Hon’ble Apex Court. In Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another, (2022) 16 SCC 1 , it

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has been held as follows:-

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“ 71. Our final conclusions may be summed up thus:

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71.1. Order 2 Rule 2CPC operates as a bar against a subsequent suit if the requisite conditions for application thereof are satisfied and the field of amendment of pleadings falls far beyond its purview. The plea of amendment being barred under Order 2 Rule 2CPC is, thus, misconceived and hence negatived.

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71.2. All amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. This is

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CMP No.813 of 2025

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Page 6 of 10

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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mandatory, as is apparent from the use of the word “shall”, in the latter part of Order 6 Rule 17CPC.

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71.3. The prayer for amendment is to be allowed:

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71.3.1. If the amendment is required for effective and proper adjudication of the controversy between the parties.

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71.3.2. To avoid multiplicity of proceedings, provided

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( a ) the amendment does not result in injustice to the other side, ( b ) by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers a right on the other side, and

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( c ) the amendment does not raise a time-barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

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71.4. A prayer for amendment is generally required to be allowed unless:

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71.4.1. By the amendment, a time-barred claim is sought to be introduced, in which case the fact that the claim would be timebarred becomes a relevant factor for consideration.

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71.4.2. The amendment changes the nature of the suit.

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71.4.3. The prayer for amendment is mala fide, or

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71.4.4. By the amendment, the other side loses a valid defence.

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71.5. In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

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71.6. Where the amendment would enable the court to pinpointedly consider the dispute and would aid in rendering a

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CMP No.813 of 2025

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Page 7 of 10

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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more satisfactory decision, the prayer for amendment should be allowed.

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71.7. Where the amendment merely sought to introduce an additional or a new approach without introducing a time-barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

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71.8. Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

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71.9. Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could be allowed and the issue of limitation framed separately for decision.

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71.10. Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

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71.11. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the

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CMP No.813 of 2025

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Page 8 of 10

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Signature Not Verified

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Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. ( See Vijay Gupta v. Gaginder Kr. Gandhi.) ”

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9. Thus it is incumbent upon the plaintiffs or the party seeing for amendment after the trial has commenced in the suit, as in the given

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case at hand is at the stage of argument, the burden is on the plaintiffs to discharge the satisfaction on their part that despite their due diligence the same could not be brought on record in time. This is not explained by the plaintiffs except saying that it was not within their knowledge from the beginning due to absence of certain specific documents. It needs to be mentioned here that even now also the plaintiffs have failed to bring any such document to establish the connection of the properties under Lot No.2 with Sikim Khata No.3 and 4. Moreover, when their initial pleading in the plaint was also relating to Sikim tenancy as well as purchased by the common ancestor, it is imperative on the part of the plaintiffs to bring such pleadings at the earliest and not at such belated stage when the case is posted for argument. It is needless to say that if such amendment would be allowed at this stage the plaintiffs will develop a further case in their favour leading to adduce further evidence to that effect. Thus on such premises, no merit is seen in

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CMP No.813 of 2025

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Page 9 of 10

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Signature Not Verified Digitally Signed Signed by: MANAS KUMAR PANDA Reason: Authentication Location: OHC, Cuttck Date: 22-Oct-2025 18:06:43

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favour of the plaintiffs from any angle to allow their prayer for amendment as sought for.

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10. In the result the impugned order is confirmed and the CMP is dismissed.

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( B.P. Routray) Judge