Advocates:
['M/S UPENDRA KU SAMAL', '', 'C D SAHOO', 'S NAIK', 'S P PATRA', 'M/S S S RAO', 'B K MOHANTY', 'S I HOSSAIN', 'M/S BISWAJIT PARIDA']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP No.23 of 2017

Ratanben Nagada alias Nagda and

others

….

Petitioners

Mr. Upendra Kumar Samal, Advocate

-versus-

Smt. Rekha Kumari Kakad and others

….

Opp. Parties

Mr.S.S.Rao, Advocate

(For Opposite Party No.1)

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

25.10.2021

CMP No.23 of 2017 & IA No.1526 of 2019

6.

1.

This matter is taken up through hybrid mode.

2.

Though the IA No.1526 of 2019 filed for vacation of

interim order dated 24^th January, 2017 is listed for orders, but on

the consent of learned counsel for the parties, the CMP is taken up

for disposal.

3.

This CMP has been filed assailing the order dated 22^nd

September, 2016 (Annexure-4) passed by learned Civil Judge

(Senior Division), Bhawanipatna in CS No.2 of 2011, whereby he

rejected an application under Order VI Rule 17 CPC filed by the

Defendant Nos.1, 6, 7 and 8 (Petitioners herein) for amendment of

their written statement.

4.

It is submitted by Mr. Samal, learned counsel for the

Petitioners that learned trial Court, without adjudicating the

petition filed under Order VI Rule 17 CPC on merit, rejected the

same merely on the ground that it was filed after commencement

of the trial without explaining as to how the Defendants could not

have stated the pleadings in their written statement in spite of due

diligence before commencement of the trial. It is his submission

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that the proposed amendment was essential for just adjudication

of the case, as it explains the circumstances under which the

Plaintiff entered and possessed the suit land which fell to the share

of one Punshi Nagada, the predecessor of the Petitioner. The

plaintiff has already sold her share to one Anita Jain in the year

2007. The relevance of the proposed amendment was not taken

into consideration by the learned trial Court. Though the plaintiff

had already filed her evidence in affidavit under Order XVIII Rule

4 CPC at the time the amendment petition was filed, but she had

not entered the witness box to depose in support of the affidavit.

Thus, it cannot be said that the trial has commenced for the

purpose of entertaining an application under Order VI Rule 17

CPC. In support of his case, Mr. Samal placed reliance on the case

of M/s Tarachand Sawarmal Modi Vs. Sheo Prakash Muraka,

reported in (2005) I OLR 589, wherein this Court held as

follows:-

“13.…It appears from the impugned order that the said

petition filed for amendment of the plaint was rejected on

the ground that trial of the suit has already started and

therefore under the amended provision of the C.P.C. the

amendment cannot be allowed. Second ground of rejection

is on merit of the case. So far as first ground of rejection is

concerned, learned counsel for the petitioner relied upon a

decision of the Apex Court in the case of Ameer Trading

Corporation Limited v. Shapoorji Data Processing Ltd.,

reported in AIR 2004 S.C.355. The Apex Court in the

aforesaid decision has held that in appellable cases the

examination-in-chief of a witness in the form of the

affidavit cannot be ordered to form part of the evidence

unless the deponent thereof enters the witness box and

confirms that the contents of the affidavit are as per his say

and the affidavit is under his signature. It is submitted by

the learned counsel for the parties that examination of

witnesses has not started. In view of the above, the

aforesaid Supreme Court decision has full application to

the facts of the present case and accordingly the

amendment could be entertained before examination of

witness .”

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He also relied upon the case of Smt. Basanti Satapathy and

two others Vs. Rakesh Kumar Satapathy, reported in (2003) I

OLR 516, wherein this Court held a