29th July, 2025
SASHIKANTA MISHRA, J.
The petitioner is the plaintiff in C.S. No. 7558 of
2015 pending in the Court of learned 1st Additional Civil
Judge (Senior Division), Bhubaneswar. The Opposite
Party No.1 is defendant No.5 while the Opposite Party No.
2 to 5 are proforma defendant Nos. 1 to 4 in the said suit.
In the present application, the plaintiff-petitioner
questions the correctness of order dated 24.08.2023
passed by the Court below whereby, the application filed
by defendant No.5 for amendment of his additional W.S.
to incorporate counter claim was allowed.
2. The facts, relevant only for deciding the present case
are that the plaintiff had filed the suit originally seeking
the relief of permanent injunction against the defendants
in respect of the suit property. Defendant No.5 filed his
written statement whereupon issues were settled on
05.01.2018. Be it noted that the written statement was
filed beyond the statutory period with leave of the Court.
The plaintiff sought amendment of the plaint by filling
appropriate application which was allowed by the Court
below on 26.11.2022. Consequently, the plaintiff filed
consolidated plaint incorporating additional prayer for
declaration that ROR prepared in respect of the suit land
incorporating the name of defendant No.1 late Nibas
Nayak is erroneous and that the same would not affect
his right, title and interest over the suit property along
with permanent injunction. Defendant No.5 filed
additional written statement in response to the
consolidated plaint on 22.03.2023. Again on 10.04.2023,
the defendant No.5 filed an application for amendment of
his written statement to incorporate counter-claim
seeking relief of partition of the suit schedule property,
delivery of possession and permanent injunction against
the plaintiff. The plaintiff filed objection. By the order
impugned, the Court below allowed the petition for
amendment to incorporate the counter-claim mainly on
the ground that in view of amendment to the plaint at the
stage of hearing, defendant No.5 was compelled to file the
counter-claim to avoid multiplicity of proceedings.
Further, the trial Court also took note of the fact that the
suit was posted for framing of additional issues and
hearing was yet to commence and therefore, if the
counter claim is accepted, the plaintiff will not be
prejudiced as he will have the opportunity to file written
statement to the counter claim.
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