Advocates:
['M/S S K NAYAK', '', 'G C RAY', 'S S K NAYAK', 'K BEHERA', 'A BEHERA', 'KINTARA']

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IN THE HIGH COURT OF ORISSA AT CUTTACK

CMP NO. 935 OF 2017

Gauranga Chandra Das

.....

Petitioner

Mr. S.S.K. Nayak, Advocate

-versus-

Kokila Das and others

….

Opp. Parties

None

No

CORAM:

JUSTICE K.R. MOHAPATRA

ORDER

Order No.

26.07.2022

10.

1.

This matter is taken up through hybrid mode.

2.

This CMP has been filed assailing the order dated 19^th

July, 2017 (Annexure-6) passed by learned Civil Judge (Junior

Division), Bhadrak in C.S. No. 174 of 1996-I, whereby an

application under Order VI Rule 17 C.P.C. filed by the Plaintiffs

for amendment of the plaint was rejected.

3.

Mr. Nayak, learned counsel for the Petitioner submits

that before settlement of the issues, by order of the learned trial

court, a survey knowing commissioner was deputed. Upon local

inspection, he submitted his report to the learned trial court. On

perusal of the report, the Plaintiff No.1-Petitioner came to learn

that descriptions of some of the suit schedule properties have

been wrongly mentioned in the body of the plaint as well as in

the schedule. Hence, he filed an application under Order VI

Rule 17 C.P.C. to amend the plaint in consonance with the report

of survey knowing commissioner. The said application was

rejected vide order dated 4^th April, 2014. Assailing the same, the

Petitioner filed CMP No. 462 of 2014, which was disposed of on

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2^nd December, 2015 by remitting the matter back to the learned

trial court for fresh consideration of the petition under Order VI

Rule 17 C.P.C. Accordingly, the petition for amendment was

considered afresh and the impugned order has been passed.

4.

It is his submission that the petition for amendment was

rejected on the ground that although the survey knowing

commissioner has submitted his report to the learned trial court,

but the same has not yet been admitted in evidence and if the

report of the survey knowing commissioner is not accepted, the

amendment, if any, made to the plaint pursuant to such report,

may lead to multiplicity of litigation and change the nature and

character of the suit. It is further submitted that amendment of

description of the suit land will never change the nature and

character of the suit land and it is filed only to rectify the

dimension and measurement of the land. The Petitioner does not

want to change the plot number and khata number. Further, if the

report of the survey knowing commissioner is not accepted, the

Petitioner has to prove his case by leading cogent evidence. It is

his submission that the suit is at the stage of settlement of issues.

Thus, proviso to Order VI Rule 17 C.P.C. is not applicable to the

present case. In that view of the matter, the impugned order is

not sustainable in the eyes of law. He, therefore, prays for

setting aside the impugned order and to allow the amendment

sought for.

5.

None appears for the Opposite Parties.

6.

Office note discloses that A.D. has not returned back

from Opposite Party No.6. It further appears from the office

note that notice issued to the Opposite Party No. 8 has returned

unserved with a postal remark that he refused to accept such

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notice. As such, notice on Opposite Party No.8 is treated to be

sufficient. Notices on all other Opposite Parties have been

validly served.

7.

Taking into consideration the submission made by

learned counsel for the Petitioner as well as the materials

available on record, it appears that the Petitioner has proposed to

amend the dimension and measurement of certain plots in the

body of the plaint as well as in the schedule. The amendment

was required pursuant to the report submitted by the survey