LINGARAJ SAHOO Vs. LINGARAJ SENAPATI

JUDGEMENT

(1.) 15.05.2012 - The opp. parties have entered appearance through their learned counsel, Mr. Biswajit Mohapatra.

(2.) HEARD learned counsel for the parties.This writ petition has been filed against an order rejecting the application for amendment of the plaint. A suit was filed by the petitioner and the proforma opp. party No.2 for permanent injunction. During course of hearing of the suit, the petitioner alleged that for the first time, he came to know that only the nick name of his father has been mentioned in the cause title page of the plaint and his full name has not been mentioned. He filed an application for amendment of the cause title page of the plaint by mentioning the name of his father as "Late Gajendra @ Jogendra Sahoo" instead of only "Late Gajendra Sahoo". The Court below rejected the said application on the ground that the application for amendment has been filed after commencement of the trial of the suit, which is not permissible under the proviso to Order 6 Rule 17 C.P.C. and the plaintiff No.2 (Opp. party No.2 herein) has admitted in his evidence that he does not know any person named as Lingaraj Sahoo (petitioner) to be the son of late Gajendra. By now, Order 6, Rule 17 CPC after its amendment and introduction of the proviso has been interpreted in various decisions both of this Court as well as the Apex Court. The Supreme Court in the case of Chander Kanta Bansal v. Rajinder Singh Anand, AIR 2008 SC 2234, on analysing the provision of Order 6 Rule 17 CPC held that the said provision was omitted from the Code by the amending Act 46 of 1999. Rule 17 of Order 6 was in the statute for ages and there was hardly a suit or proceeding where this provision had not been used. This was the reason which led to much controversy leading to protest all over the country when the provision was omitted from the Code. Rule 17 of Order 6 was, therefore, restored in its original form by the amending Act 22 of 2002 with a rider in shape of the proviso. The proviso limits the scope of amendment to pleadings to some extent, but, still it vests enough powers in Courts to deal with the situations which were unforeseen before commencement of trial of the suit. The Supreme Court, therefore, laid down that the entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and the parties had sufficient knowledge of the other's case. It also helps in checking the delays in filing the applications. Once, the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, he could not raise a plea, it is for the Court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. (Emphasis supplied). In the present case, the amendment as sought for cannot amount to a surprise to the defendants. However, the plaintiff had shown that he came across the mistake during trial of the suit. It is further seen that such amendment does not change the nature and character of the suit. In such circumstances, the trial Court should not have refused the prayer for amendment. Accordingly, the impugned order is set aside and the petitioner -plaintiff is permitted to amend the plaint as sought for. He shall file a consolidated copy of the plaint by mentioning the correct name of his father in the cause title page of the plaint, by 20.6.2012. The Trial Court shall proceed to dispose of the suit expeditiously. This writ petition is accordingly disposed of.