Laxminarayan Mishra vs Jagdeep Pratap Deo

K.R. Mohapatra, J

This matter is taken up through hybrid mode.

Order dated 7th September, 2023 (Annexure-5) passed by learned Civil Judge (Senior Division), Sundargarh in CMA No.34 of 2023 is under challenge in this CMP, whereby an application filed under Order VI Rule 17 CPC to amend the CMA, has been rejected.

Mr. Samal, learned counsel for the petitioner submits that the suit was decreed against the Petitioner, who was one of the Defendants. In an execution proceeding, the property in question was delivered to the decree holder-Plaintiff by evicting the Defendants including the Petitioner. When the house of the Petitioner was demolished and possession was delivered, on the very next day, he filed CMA No.34 of 2023 under Section 144 CPC for restitution of possession on the ground that Plot No.03/4035 under Hal Khata No.507 of Mouza Sundargarh town is not the suit plot. Thus, it could not have been delivered to the Plaintiff in the execution proceeding. As the petition under Section 144 CPC was filed in a hurry, certain relevant facts could not be incorporated in the said petition. Accordingly, an application under Order VI Rule 17 CPC was filed for amendment of the CMA.

Learned trial Court while adjudicating the petition under Order VI Rule 17 CPC vide order dated 7th September, 2023 almost disposed of the petition under Section 144 CPC as not maintainable.

It is his submission that in the facts and circumstances of the case, provision under Order VI Rule 17 CPC may not be applicable but the nomenclature of the petition should not be a ground to reject the petition. The petition was essentially filed under Section 153 CPC.

As such, learned trial Court should have considered the same without making any observation with regard to the maintainability of the petition filed under Section 144 CPC. It is his submission that merit of the petition for amendment was not at all discussed by learned trial Court while adjudicating the matter. Hence, he prays for setting aside the impugned order and to direct learned trial Court to consider the petition for amendment of the CMA afresh on its own merit.

Taking note of the submission of Mr. Samal, learned counsel for the petitioner, this Court is of the considered opinion that a petition under Order VI Rule 17 CPC would not be maintainable for amendment of the averments in CMA No.34 of 2023. In the instant case, provision under Section 153 CPC will be applicable. Be that as it may, learned trial Court, while adjudicating the petition for amendment of the CMA, should not have delved into the maintainability of the petition under Section 144 CPC. It further appears that learned trial Court has not discussed the merits of the petition for amendment. Only opining that Section 144 CPC would not applicable to the facts and circumstances of the case, it rejected the petition under Order VI Rule 17 CPC.

In view of the above, this Court feels that the matter requires fresh consideration.

Accordingly, the CMP is disposed of with an observation that in the event the Petitioner files an application for recall of the order dated 7th September, 2023 passed by learned Civil Judge (Senior Division), Sundargarh in CMA No.34 of 2023 within a period of two weeks hence, the same shall be considered on its own merit giving opportunity of hearing to the parties concerned.

The CMP is accordingly disposed of.

Urgent certified copy of this order be granted on proper application..

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