PUENA CHANDRA SAMANTARAY Vs. SARADA PRASAD SATYANARAYAN SAMANTARAY

JUDGEMENT

(1.) This writ application is directed against the order dated 24.12.2005 passed by the learned Additional Civil Judge (Senior Division), 1st Court, Bhubaneswar in C.S. No.16/699 of 2005/2004 rejecting an application filed under Order 6, Rule 17 of the C.P.C. for amendment of the written statement.

(2.) The suit has been filed by the plaintiff-opposite party for permanent injunction. The defendant-petitioners filed written statement on 12.12.2005. It is the case of the defendant-petitioners in the application for amendment that while drafting the written statement some important facts were not included in the written statement due to ignorance and accordingly some mistakes need to be corrected. Apart from the above, it is also the case of the defendant-petitioners in the application for amendment that they could know about the sale deed on 16.10.2004 and accordingly amendment was necessary for adding some new facts. An objection was filed by the plaintiff-opposite party stating therein that the facts intended to be brought on record by way of amendment were also available to be taken at the time of filing of written statement. The said averments having not been made at the time of filing of the written statement, subsequent attempt to bring those facts by way of amendment should not be allowed. It was also contended in the objection that if the amendment is allowed, it will take away the effect of an admission made in the written statement and, therefore, such amendment should not be allowed. The trial Court in the impugned order was of the view that if the proposed amendment is allowed, it shall take away the effect of admission in the written statement and accordingly rejected the petition.

(3.) Shri R.K. Nayak, the learned counsel for the defendant-petitioners challenging the impugned order submitted that the proposed amendment is only an alternative plea taken in the written statement and in no way affects the nature and character of the stand taken in the written statement. It was also contended by Nayak that the plea taken in the proposed amendment being an alternative plea, cannot be said to be inconsistent with the pleadings taken in the written statement and such alternative plea is available to be taken by way of amendment as it does not cause any prejudice to the plaintiff. Shri Nayak also contended that the proposed amendment does not take away the effect of so-called admission in the written statement.