Masjig E Ahle Hadees Vs Md. Anis Khan

Heard Mr.K.K.Mishra, learned counsel for the Petitioners as well as Mr.P.K.Mohanty, learned Senior Counsel for the Opposite Parties. Perused the CMP application as well as the prayer made therein.

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By filing the present CMP application under Article 227 of the Constitution of India, the Plaintiffs in CS No.26 of 2022, pending in the court of Learned Civil Judge (Junior Division) Berhampur, have approached this Court, thereby challenging order dated 16.05.2025, passed in the abovenoted suit, rejecting the application of the Petitioners-Plaintiffs under Order 6 Rule 17 of the CPC.

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Learned counsel for the Petitioners at the outset contented

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that the Plaintiffs initially filed the abovenoted suit with a prayer for declaration and permanent injunction against the Defendant Nos.1 to 7. Subsequently, on an application being filed by the Plaintiffs, Defendant No.8 was added as a party to the suit. He further contented that the Defendant No.8 filed a WS in the suit, taking certain averments which are against the interest of the Plaintiffs. As a result, the Plaintiffs filed an application under Order 6 Rule 17 of the CPC, seeking amendment of the plaint to the extent of incorporating the pleadings with regard to the claim of the Defendant No.8. Such application having been rejected by the impugned order dated 16.05.2025, the Petitioners have approached this court by filing the present CMP application.

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Learned counsel for the Petitioners, in course of his argument, submitted before this court that although the application for amendment under Order 6 Rule 17 was filed after commencement of the trial, however, the same was filed only after filing of the written statement by the newly added Defendant No.8. He further contented that unless the pleading of the Plaintiffs, as contained in the plaint, is permitted to be amended, the Plaintiffs are likely to suffer serious prejudice. Further, while assailing the impugned order dated 16.05.2025, learned counsel for the Petitioner contented that the learned trial court has rejected the prayer of the Petitioner mechanically without considering the proposed amendment which has been filed along with the present CMP application as Annexure-2. Learned counsel for the Petitioner drew attention of this court to the proposed amendments and emphatically argued that the amendment sought for at paragraph Nos.c, d, and e are relevant for the purpose of the present suit, and

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accordingly, the same should have been allowed while considering the application for amendment. Mr. Mishra, learned counsel for the Petitioner, fairly conceded that the amendment sought for at paragraph Nos. a, b, and f, if allowed, would change the nature and character of the suit, therefore he did not press those amendments.

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Mr. P.K. Mohanty, learned Senior Counsel appearing for the Defendants-Opposite Parties, on the other hand, contented that the application under Order 6 Rule 17 filed by the Plaintiffs is not maintainable as the same was filed after the trial has commenced. He further submitted that the Plaintiffs have miserably failed to satisfy the due diligence test as is required under the proviso to Order 6 Rule 17 of the CPC. As such, it was contented that the application for amendment is not maintainable.

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Further, countering the impugned order on merits, learned Senior Counsel appearing for the Opposite Parties-Defendants contented that the proposed amendment, as per Annexure-2 to the CMP application, if allowed, would change the nature and character of the suit. Further, referring to the impugned order dated 16.05.2025, learned Senior Counsel appearing for the DefendantsOpposite Parties contended that the learned trial court by virtue of a well-reasoned order has dismissed the plaintiffs’ application for amendment filed under Order 6 Rule 17 of the CPC. He further emphatically argued that the learned trial court has not committed any illegality in rejecting the application of the plaintiffs for amendment as the same was filed after commencement of the trial and without there being any explanation with regard to the due diligence. Further, it was also contended that the learned trial court has categorically stated that if the amendments are allowed, the

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same would change the nature and character of the suit and would create anomaly during the hearing of the suit. On such ground, Mr.Mohanty, learned Senior Counsel for the Opposite Parties objected to the proposed amendments while supporting the impugned order dated 16.05.2025 rejecting the Petitioners’ prayer for amendment.

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Upon hearing learned counsels appearing for both sides and on a careful examination of the documents filed along with the writ petition, particularly, the amendment application at Annexure-2 and the impugned order dated 16.05.2025 at Annexure-5, this court observed that the plaintiffs being aggrieved by the rejection of their application under Order 6 Rule 17 of the CPC for amendment of the plaint have approached this court by filing this writ petition. In course of hearing, this Court went through the proposed amendments as per the application, at Annexure-2 to the CMP petition. On perusal of the proposed amendments as has been indicated in Para-6 of the application, this court found that the proposed amendments at paragraph Nos.a, b, c, d, and f are either not necessary or in the event the same are allowed, they would definitely change the nature and character of the suit. With regard to the amendment sought for at Para-e of Paragraph 6 of the application at Annexure-2, this Court observed that the same contains an averment with regard to the right of the Defendant No.8 who was added subsequently. At this juncture, this Court would like to remind itself that the Defendant No.8 was added subsequently after commencement of the trial and thereafter he has filed a W.S. As such, the plaintiffs had no occasion to counter the pleadings of the Defendant No.8 at the time of filing of the plaint,

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as the Defendant No.8 was not a party to the suit. Moreover, on a close scrutiny of the pleadings contained in Para-6(e) of the application at Annexure-2, this Court is of the view that the same is necessary for a just adjudication of the dispute involved in the present suit. With regard to the due diligence test as provided in the proviso to Order 6 Rule 17, this Court is of the view that such provision may not be applicable as the Defendant No.8 was added as a party subsequently and thereafter he filed his W.S forcing the Plaintiffs to amend their plaint.

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In view of the aforesaid analysis of the factual as well as the legal background of the present case, this Court is of the considered view that the learned trial court has not committed any illegality in rejecting the plaintiffs’ prayer for amendment so far paragraph Nos.a, b, c, d, and f are concerned. With regard to paragraph No.6(e), this Court is of the view that the contention of learned counsel for the Petitioners-Plaintiffs has substance. Further, on a close scrutiny of the proposed amendment, it appears that the content in Para-c and e of Paragraph 6 of the application at Annexure-2 appears to be somewhat similar. Accordingly, the present CMP application is partly allowed to the extent that the plaintiffs shall be permitted to amend the plaint only in respect of Para-6(e) of the application at Annexure-2. It is needless to mention here that the Defendants shall get an opportunity to file their written statement to the aforesaid amendment. Further, taking into consideration the fact that the suit is of the year 2022, this court directs the learned trial court to make every endeavor to expedite the trial in the suit subject to the convenience of the trial court. The parties are directed to cooperate with the learned trial court for an

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Anil

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early disposal of the suit and not to seek any unnecessary adjournments.

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With the aforesaid observations/ directions, the CMP application stands disposed of.

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( A.K. Mohapatra ) Judge

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Signature Not Verified

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Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 12-Mar-2026 13:51:36

Masjig E Ahle Hadees v. Md. Anis Khan

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Masjig E Ahle Hadees v. Md. Anis Khan

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