DIBYA KESHARI DEO vs STATE OF ORISSA
- Court
- Odisha High Court
CMP/829/2016
ODHC010276892016
2026:OHC:273
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.829 of 2016
[CNR No.- ODHC010276892016]
An application under Article 227 of the Constitution of India, 1950.
1. Dibya Keshari Deo
2. Surya Pratap Deo
Petitioners
….
(Plaintiffs)
-versus-
1. State of Odisha
2. The Collector, Cuttack
3. Cuttack Municipal Corporation,
Cuttack (deleted)
….
Opposite Parties
(Defendants)
Advocates who appeared in this case through Hybrid Mode:
For Petitioners : Ms. Supriya Patra, Advocate
(for Petitioner No.1)
Petitioner No. 2 (In Person)
For Opposite Parties : Mr. Bibekananda Nayak, AGA
(for O.P. Nos.1 and 2)
Mr. Pratap Kumar Behera, Advocate,
on behalf of Mr. D. Nayak, Advocate
(for O.P. No.3)
CORAM:
HON’BLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
...………………………………………………….…………………
Date of Hearing: 06.08.2026 Date of Judgment: 31.10.2026
……………………………………………………………………….
Savitri Ratho, J. This CMP has been filed by the Plaintiffs
challenging the order dated 09.05.2016 passed by the Learned Civil
Judge (Senior Division), 2nd Addl. Court, Cuttack in C.S. No. 273 of
CMP No.829 of 2016 Page 1 of 19
2000, partly rejecting the application filed under Order- 6 Rule-17 of
C.P.C filed by them to amend the plaint.
BRIEF FACTS OF THE CASE
2. Civil Suit No. 273 of 2000 had been filed by Late Ram
Chandra Deo and Late Prabira Keshari Deo, predecessors of the
st
Petitioners in the Court of the learned 1 Additional Civil Judge (Sr.
Division), Cuttack praying for the following reliefs;
a). Her title to the property described in Schedule-'A'
“
below be declared and her possession thereof be
confirmed. In case the Plaintiff is found to have been
dispossessed from any part of the suit property she be
restored to possession through Court.
b). The Defendants, their men and agents be restrained
by a decree of permanent injunction from coming upon
the suit property and committing any act of violence so
as to affect the land and building and from interfering
with the plaintiff's possession thereof in any manner
whatsoever in future.
c). Costs of the suit be decreed in favour of the Plaintiff
and against the Defendants.
d). The Plaintiff be given such other relief or reliefs as
she may be found entitled to in the facts and
circumstances of the case.”
BACKGROUND OF THE CASE
3. The case of the Plaintiffs was that the suit land originally
formed part of Sabik Plot Nos. 3133 and 3134 of Mouza-Bisinabar
CMP No.829 of 2016 Page 2 of 19
belonging to the Mulia family, which were subsequently amalgamated
as C.S. Plot No. 2195. Due to an error in the C.S. settlement, a portion
of the original land was wrongly included in Government Plot No.
2196. In the family partition of 1966, Bidyadhar Mulia was allotted a
portion of C.S. Plot No. 2195 and continued to possess the adjoining
portion of Plot No. 2196. In 1967, Bidyadhar Mulia transferred
possession of Ac.0.065 decimals (Ac.0.025 decimals from Plot No.
2195 and Ac.0.040 decimals from Plot No. 2196) to the Plaintiff for
consideration, with a promise to execute a registered sale deed after
correction of the settlement records. Since then, the Plaintiff has
remained in open, continuous and uninterrupted possession, asserting
title over the entire land. While the portion in Plot No. 2195 has since
been recorded in the Plaintiff's name during Hal Settlement, the
remaining portion corresponding to Hal Plot No. 1734 continues to be
affected by the earlier settlement error.
4. Notice was issued to the Defendants who had filed their
written statements denying the plaint averments and challenging the
maintainability of the suit.
5. After trial had commenced and Plaintiffs had examined
P.W.1, and the matter was posted for further evidence on behalf of the
CMP No.829 of 2016 Page 3 of 19
plaintiffs, an application under Order 6, Rule 17 of the CPC for
amendment of the plaint to correct the errors relating to descriptions,
survey numbers, khata details, land measurements, and to insert
additional facts regarding the correspondence between Hal Plot No.
1734 and Sabik Plot No. 2196, the possession of Bidyadhara Mulia, the
findings of the Settlement Authorities, and the subsequent transfer of
the property in favour of the original plaintiff. It was stated in the
application that it found that there were certain clerical, typographical
errors and some material facts had been inadvertently omitted and they
were necessary to be incorporated to clarify the facts already pleaded.
6. Objection was filed by the Defendants stating that if the
amendment is allowed, the lacuna elicited in cross-examination of the
Plaintiffs would be filled up thereby prejudicing the interest of the
State. It is also stated that the petition had been filed to prolong the
disposal of the suit and should be dismissed.
IMPUGNED ORDER
7. On 09.05.2026, the learned trial Court partly allowed the
application for amendment. The trial Court observed that t trial had
commenced and although the proviso(2) of Order 6 Rule 17 of the CPC
CMP No.829 of 2016 Page 4 of 19
was not applicable to the suit as it had been filed prior to the 2002
amendment but the purposed amendment was within the knowledge of
Plaintiffs and no explanation given for not mentioning it earlier in the
plaint and on perusal of the order sheet it was apparent to the Court that
the intention of the Plaintiffs in praying for the amendment was to
linger the case. Prayer to insert in Paragraph-3 regarding possession of
Bidyadhar Mulia over Sabik Plot No 2196 was irrelevant and not
necessary for the purpose of the case. The learned trial partly allowed
the application and directed to amend the plaint except paragraph 4 of
the proposed amendment. The Operative portion of the order is
extracted below :
…..“It is argued by learned counsel for the plaintiff that if
the para-4 of the proposed amendment will not be
included in the plaint then the plaintiff will suffer
irreparable loss. He further submitted the certified copy
of yadast in support of proposed amendment petition. In
the present suit, the trial has already been commenced
though proviso (2) of order 6 rule 17 C.P.C. is not
applicable to the suit prior to the amendment of 2002 but
the court finds that the same was within the knowledge of
the plaintiff. On perusal of the order sheet. It is clear that
the intention of the plaintiff is to linger the case. Though
delay itself is not a ground to refuse the amendment the
CMP No.829 of 2016 Page 5 of 19
court can permit the amendment if the interest of justice
is required. From the proposed amendment petition it
reveals that plaintiff wants to insert in para-3 regarding
possession of Bidyadhar Mulia over Sabik plot no.
2196.Perused the previous plaint which is similar to the
proposed amendment. In the opinion of the court the said
para is irrelevant or not necessary for the purpose of this
case. Plaintiff in support of his amendment petition file an
yaddast copy to prove the possession of Bidyadhar Mulia
over the suit land. It is pertinent to mention here that the
plaintiff has already cross-examine he never raised any
question regarding to the possession lover the suit land. It
can be prove by adducing documentary evidence.
Considering the above facts and circumstances, partly
allowed the plaintiff is directed to amend the plaint
except para no. 4 of the proposed amendment subject to
payment of cost of Rs.500/- paid to the Civil bar, Cuttack.
Put up on 16.5.2016 for filing of consolidated copy of
plaint and payment of cost. No further opportunities will
be given. If the plaintiff will not carried out the order of
the court the same will be automatically recalled.”
SUBMISSIONS
8. I have heard Ms. Supriya Patra, learned counsel for the
Petitioner No.1 and Mr. Surya Pratap Deo- Petitioner No.2 appearing
in person, Mr. Bibekananda Nayak learned counsel for Opposite Party
CMP No.829 of 2016 Page 6 of 19
Nos. 1 & 2 and Mr. P.K Behera learned counsel for Opposite Party
No.3.
9. Ms. Supriya Patra, learned counsel for the Petitioner No.1
and Mr. Surya Pratap Deo-Petitioner No.2 appearing in person
submitted that the amendment which was rejected is formal in nature
and will not cause any prejudice to the Defendants as the plaint already
contained averments regarding availability of the yadast and the
proposed amendment at Paragraph-4 was an addition in order to bring
the yadast on record. They also submitted that the restriction relating to
amendment of plaint s after commencement of the trial will not be
attracted in the present case the Suit is of the year 2000 which is before
the 2002 amendment to Order 6, Rule 17 of the CPC. In support of
their submissions, Ms. Deo, learned counsel relies on the decision of
Supreme Court in the case of Sugandhi (Dead) by Lrs. & Anr. Vs. P.
Rajkumar Represented by his Power Agent Imam Oil (Civil Appeal
No. 3427 of 2020 arising out of S.L.P.(C) No. 16491 of 2019), decided
th
on 13 October 2020.
Mr. B. Nayak, learned Additional Government Advocate
10.
submitted that after filing of the plaint, the plaintiffs have not taken any
steps to adduce evidence in support of the amendment sought for. The
CMP No.829 of 2016 Page 7 of 19
document relied on in the proposed amendment was very much
available at the time of filing of the plaint. Defendants No.1 and 2 had
filed their joint written statement denying the plaint averments and
challenging the maintainability of the suit. After the trial had
commenced and examination of the witnesses from the side of the
Plaintiffs was going on, the application under Order 6 Rule 17 of the
CPC was filed by the Plaintiffs for amendment of the plaint, which has
been rightly rejected as the plaintiffs could not show that inspite of
exercise of due diligence the application could not be filed earlier.
There is therefore no illegality in the impugned order for which the
present CMP is devoid of merit and is liable to be dismissed. He relied
on the following decisions in support of his submissions :-
i) Vasant Balu Patil and Others vs. Mohan Hirachand Shah and
Others: (2016) 1 SCC 530 (Paragraph-16) and
ii) Binodini Sadual vs. Ranjit Kumar Mohanty & Others: (2017) 2
ILR (Cuttack) 1147 : 2017 Supreme Orissa 743.
11. Mr. P.K. Behera, learned counsel appearing on behalf of
Opposite Party No.3 drew attention of the Court to the cause title of
consolidated plaint and submitted that only the State of Odisha and the
CMP No.829 of 2016 Page 8 of 19
Collector, Cuttack were the defendants in the suit and hence Opposite
Party No.3 should and could not have been added as an Opposite Party
in this CMP without leave of the Court.
12. This is a defect in the CMP, which should have been pointed
out by the Stamp Reporter. Opposite Party No.3 is therefore deleted.
STATUTORY PROVISIONS
13. Order 6, Rule 17 of the CPC as it stood before the
amendment of 2002 is extracted below:-
Code of Civil Procedure
Order 6 Rule 17
. Amendment of pleadings . The Court may at
“17
any stage of the proceedings allow either party to
alter or amend his pleadings in such manner and on
such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose
of determining the real questions in controversy
between the parties:
The proviso introduced in 2002 is extracted below:-
“Provided that no application for amendment shall
be allowed after the trial has commenced, unless the
Court comes to the conclusion that in spite of due
CMP No.829 of 2016 Page 9 of 19
diligence, the party could not have raised the matter
before the commencement of trial.”
JUDICIAL PRONOUNCEMENTS
14.1 In the case of Salem Advocate Bar Association vs Union of
India, 2005 (6) SCC 344 the Supreme Court has held that:
“26. Order VI Rule 17 of the Code deals with
amendment of pleadings. By Amendment Act 46 of
1999, this provision was deleted. It has again been
restored by Amendment Act 22 of 2002 but with an
added proviso to prevent application for amendment
being allowed after the trial has commenced, unless
court comes to the conclusion that in spite of due
diligence, the party could not have raised the matter
before the commencement of trial. The proviso, to
some extent, curtails absolute discretion to allow
amendment at any stage. Now, if application is filed
after commencement of trial, it has to be shown that
in spite of due diligence, such amendment could not
have been sought earlier. The object is to prevent
frivolous applications which are filed to delay the
trial. There is no illegality in the provision."
In the case of (Supra), the Supreme Court has
14.2 Sugandhi
held as follows: -
CMP No.829 of 2016 Page 10 of 19
“9. It is often said that procedure is the handmaid of
justice. Procedural and technical hurdles shall not be
allowed to come in the way of the court while doing
substantial justice. If the procedural violation does not
seriously cause prejudice to the adversary party, courts
must lean towards doing substantial justice rather than
relying upon procedural and technical violation. We
should not forget the fact that litigation is nothing but a
journey towards truth which is the foundation of justice
and the court is required to take appropriate steps to
thrash out the underlying truth in every dispute. Therefore,
the court should take a lenient view when an application is
made for production of the documents under sub-rule (3).”
14.3 In the case of Rajkumar Gurawara (Dead) Thr. Lrs vs
M/S. S.K.Sarwagi & Co. Pvt. Ltd . reported in 2008 (14) SCC 364 the
Supreme Court has held that:
“13. To put it clear, Order VI Rule 17 C.P.C.
confers jurisdiction on the Court to allow either
party to alter or amend his pleadings at any stage of
the proceedings on such terms as may be just. Such
amendments seeking determination of the real
question of the controversy between the parties shall
be permitted to be made. Pre-trial amendments are
to be allowed liberally than those which are sought
to be made after the commencement of the trial. As
CMP No.829 of 2016 Page 11 of 19
rightly pointed out by the High Court in the former
case, the opposite party is not prejudiced because he
will have an opportunity of meeting the amendment
sought to be made. In the latter case, namely, after
the commencement of trial, particularly, after
completion of the evidence, the question of prejudice
to the opposite party may arise and in such event, it
is incumbent on the part of the Court to satisfy the
conditions prescribed in the proviso.
17. We have already explained the implication of
proviso to Rule 17. Though even after
commencement of the trial, parties to the proceeding
are entitled to seek amendment, in the light of the
factual details such as clear information in the reply
notice prior to the filing of the suit and specific plea
in the written statement of D-1 which contained
details of government orders leasing out the suit
property in favour of D-2, the action of the plaintiff
at the stage of argument can not be permitted.
Admittedly, the plaintiff failed to adhere to the said
recourse at the appropriate time."
14.4 In the case of Binodini Sadual (Supra) , this Court has held
as follows:
“…This Court observes that the attempt of
amendment after two decades of the cause of action
CMP No.829 of 2016 Page 12 of 19
cannot be taken as a mere delay and latches on the
other hand looking to the counter statement in the
written statement filed in 1999, it appears, there is
clear indication challenging the right, title and
interest of the plaintiff from the threshold and this is
a case of serious lapse on the part of the plaintiff
thus it is a case where plaintiff shall be debarred
from bringing a suit for declaration of right, title
and interest at this stage even. For the pleadings in
the plaint and the counter statement in the written
statement filed in 1998 and 1999 respectively bring
the dispute on the claim for right, title and interest
involving the suit. property, this case cannot be a
case of cause of action taking place on filing of
additional written statement.
11. For the observations herein above and taking
into consideration the decision of the Hon'ble apex
Court, vide (2016) 15 SCC 530, this Court has no
hesitation in interfering in the impugned order, vide
Annexure-3 and thus the order, vide Annexure-3 is
set aside. Amendment application stands rejected.
So far the order, vide Annexure-4, for the
observation herein above and since the proceeding
involved therein was not maintainable, the order,
vide Annexure-4 needs no interference.”
CMP No.829 of 2016 Page 13 of 19
14.5 In the case of Vasant Balu Patil (Supra), the Supreme Court
has held as follows:
“16. So far as the plea of limitation is concerned
there can be no manner of doubt that the amendment
of the plaint(s) to incorporate the relief of
declaration of title has necessarily to relate back to
the date of filing of the suit. Once the said
amendments were allowed and were not challenged
by the defendants, the issue with regard to limitation
has to be decided in favour of the plaintiffs.”
14.6 In the case of State of Madhya Pradesh vs. Union of
India: (2011) 12 SCC 268 , the Supreme Court has held as follows:-
“8. The purpose and object of Order 6 Rule 17 of
the Code is to allow either party to alter or amend
his pleadings in such manner and on such terms as
may be just. Amendment cannot be claimed as a
matter of right and under all circumstances, but the
courts while deciding such prayers should not adopt
a hypertechnical approach. Liberal approach should
be the general rule, particularly in cases where the
other side can be compensated with costs. Normally,
amendments are allowed in the pleadings to avoid
multiplicity of litigations.”
CMP No.829 of 2016 Page 14 of 19
14.7 Recently, in the case of Haramani Sahoo and others vs
Lalita Nayak and others : 2026 INSC 1112 , the Supreme Court after
referring to a number of its earlier decision the principles and
guidelines framed therein referred to the facts of the case and held as
follows :-
“14.1 The real inquiry is whether the amendment
introduces a distinct and independent controversy having
no connection with the original cause of action, or
whether it merely brings on record additional facts and
consequential reliefs having a direct nexus with the
existing controversy. On the facts of the present case, the
proposed amendment falls within the latter category. The
subject matter of the proposed amendment and the
original suit substantially overlap, and the adjudication of
the proposed issue would have a direct bearing upon the
title and possession claimed in respect of the suit
property.
15. The respondents have however urged that the
proposed challenge to the final decree passed in T.S.
No.105 of 1998 is barred by limitation and by Order
XXIII Rule 3A of the CPC. At this stage, we are concerned
with the permissibility of the amendment and not with the
ultimate merits or maintainability of the reliefs sought to
be introduced. The objections raised by the respondents
cannot therefore be finally adjudicated upon while
CMP No.829 of 2016 Page 15 of 19
deciding the application for amendment, unless the
proposed claim is ex facie barred in law.
16. As regards limitation, it is well settled that a claim
which is clearly barred by limitation, particularly where
its introduction would defeat an accrued right of the
opposite party, is a relevant consideration in the exercise
of discretion under Order VI Rule 17. At the same time,
where the question of limitation is itself arguable and
depends upon disputed facts, including the date or manner
in which the plaintiff acquired knowledge of the relevant
document or transaction, the amendment need not
necessarily be rejected at the threshold.”
ANALYSIS
15. From a reading of the provisions of Order 6 Rule 17 of
the CPC and the decisions referred to above, it is apparent that-
(a) pleadings can be amended any stage on such
terms as may be just;
(b) the amendment sought for, must be necessary to
determine the real question of controversy between
the parties;
(c) if trial has commenced, then the Court must be
satisfied that in spite of “due diligence” the party
CMP No.829 of 2016 Page 16 of 19
seeking amendment could not do so before the trial
started.
16. It is well settled that Order 6 Rule 17 of the CPC permits
amendment of pleadings “at any stage” and should be considered
liberally. But in cases of suits instituted after introduction of the
proviso to Order 6, Rule 17 of the CPC in 2002 by way of
amendment, the party seeking amendment has to satisfy the Court that
inspite of exercise of due diligence, the application could not be filed
before the trial commenced.
17. In the present case trial had commenced when the
application for amendment was filed, But the suit has been filed in the
year 2000, i.e. before introduction of the proviso. Therefore, the
restriction in the proviso to the effect that once trial commences, the
applicant is to prove “due diligence”- i.e., that despite his best efforts,
steps for amendment could not be taken earlier, is not attracted.
18. A reading of the plaint and the amendment application
reveals that apart from correction of typographical errors which have
been allowed by the learned trial Court , the plaintiffs sought to be
incorporated by way of Paragraph-4 to introduce additional pleadings
regarding the possession of Bidyadhar Mulia over Sabik Plot
CMP No.829 of 2016 Page 17 of 19
No.2196, the corresponding settlement entries, the Yadast and other
facts intended to strengthen the Plaintiffs' claim of title and
possession, which is not a new plea.
19. One of the reasons for rejecting the proposed amendment
was that it would delay disposal of the suit. The suit is pending since
2020 and further proceedings had been stayed by this Court in the
since 2016. This could have been avoided if the amendment had been
allowed.
20. The objection of the defendants that such amendment was
barred by limitation can be considered by the learned trial court
during trial. The defendants are at liberty to raise the question of
limitation before the learned trial court, regarding the averments /
facts which have been brought in by way of amendment.
CONCLUSION
21. In view of the above discussions, this Court is of the view
that the proposed amendment in paragraph-4 should be allowed, but
subject to payment of further cost of Rs.3000/- (in addition to the cost
of Rs.500/- already imposed by the learned trial Court) within a
period of two weeks from today.
CMP No.829 of 2016 Page 18 of 19
22. If the cost is not deposited by 13.11.2026, this order will
not be given effect to.
23. Interim order passed in Misc. Case No. 830 of 2016 stands
vacated. Misc. Case stands disposed of.
24. As the suit is of the year 2000, the learned trial Court shall
take steps to dispose of the suit expeditiously and for that purpose not
grant unnecessary adjournments to any party.
25. The CMP is accordingly allowed.
26. Copy of this judgment be communicated to the learned
trial Court by the Registry.
(Savitri Ratho)
Judge
Orissa High Court, Cuttack
st
Dated, the 31 October , 2026 /Madhusmita/ Sukanta
Signature Not Verified
Digitally Signed
Signed by: SUKANTA KUMAR BEHERA
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 05-Nov-2026 22:15:21
CMP No.829 of 2016 Page 19 of 19