Orissa High Court
Shasanka @ Sasanka vs Kuntala Sahoo …. Opposite Party on 10 June, 2025
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR C.M.P No.165 of 2025
Shasanka @ Sasanka .... Petitioner
Prasad Panda
Mr. T.K. Mishra, Advocate
-Versus-
Kuntala Sahoo .... Opposite Party
Mr. H. S. Mohanty, Advocate
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:10.06.2025
1.
Instant petition is filed by the petitioner assailing
the correctness of the decision by order dated 24th
December, 2024 as at Annexure-13 passed in
connection with C.S. No.3275 of 2014 by learned 3 rd
Additional Civil Judge (Senior Division), Cuttack,
whereby, an application under Order 6 Rule 17 C.P.C.
seeking amendment of the plaint as per Annexure-8
pressed into service by him has been declined on the
grounds inter alia that the same is not tenable in law
and hence, required to be interfered with in the interest
of justice.
2. The opposite party instituted the suit against the
petitioner for realization of a sum of Rs.1,17,700/-
C.M.P No.165 of 2025 Page 1 of 14
along with interest @ 12% per annum till such
recovery and a decree of damage for Rs.50.000/- along
with pendent lite and future interests over the entire
amount with cost. A copy of the plaint is at Annexure-
1, according to which, the opposite party pleaded that
she is a super stockiest, whereas, the petitioner to be a
distributor and was liable to pay the outstanding dues
in respect of the purchased items received between 10th
April, 2010 and 4th December, 2010 and in that
connection, had issued a cheque dated 17th May, 2011
to clear the same but it bounced back and for the same,
a complaint in 1.C.C. No.636 of 2011 was filed under
Section 138 of the N.I. Act but was dismissed on 17 th
June, 2013, against which, CRLLP No. 124 of 2013
was filed and is pending disposal before this Court. It
is further pleaded that the opposite party filed an
application under Order 6 Rule 17 CPC in the suit, to
which, an objection was received and the same was
followed by an order dated 2nd April, 2019 at
Annexure-4 thereby denying such amendment as was
pleaded. Upon rejection of the amendment of the
plaint, it is pleaded that the request to once again
amend the same was received as per Annexure-8 with a
plea that the same is necessary and is unlikely to
change the nature and the character of the suit but
C.M.P No.165 of 2025 Page 2 of 14
before that, another application under Order 6 Rule 16
CPC was moved to strike out a particular word from
para-3 and 6 of the plaint, however, it stood denied by
order dated 16th May, 2019 as at Annexure-7.
According to the petitioner, since such an application
under Order 6 Rule 17 CPC was filed as per Annexure-
8, the same was also received with an objection from
the side of the petitioner. A copy of the said objection
is at Annexure-9. The petitioner pleaded that the earlier
amendment for the self-same relief was denied vide
Annexure-4 and the application under Order 6 Rule 17
CPC was rejected too on 16th May, 2019 (Annexure-7),
so the amendment of the plaint once more with a
similar relief could not have been entertained as it was
filed to get over the limitation but was followed by an
order dated 2nd August, 2022 at Annexure-10 and the
same was challenged in CMP No.926 of 2022 disposed
of on 8th December, 2022 to freshly consider such an
application under Order 6 Rule 17 CPC. A copy of the
said order is at Annexure-11. The petitioner pleaded
that an application under Order 11 Rules 1 & 4 CPC at
the instance of the opposite party was received by
learned Court below to grant him the leave to deliver
interrogatories to the petitioner for a reply and it was
disposed of on 19th November, 2019 and the same was
C.M.P No.165 of 2025 Page 3 of 14
also rejected and during the interregnum, the
amendment of the plaint was moved but at last, it was
followed by Annexure-11 for a direction to reconsider
and ultimately, it has led to passing of the impugned
order i.e. Annexure-13, whereby, the amendment was
allowed vide Annexure-13. The contention of the
petitioner is that learned Court below ought not to have
allowed such an amendment of the plaint when all the
earlier efforts proved futile, inasmuch as, when the
amendment under Order 6 Rule 17 CPC was declined
not once but twice including rejection of an application
under Order 11 Rules 1 & 4 C.P.C. The further
contention is that the proposed amendment was moved
by the opposite party initially and thereafter, to patch
up the lacuna, since such suit is barred by limitation
and in any case, the plea for such amendment is hit by
res judicata.
3. Heard Mr. Mishra, learned counsel for the
petitioner and Mr. Mohanty, learned counsel for the
opposite party.
4. Mr. Mishra, learned counsel for the petitioner
reiterates the facts pleaded on record to submit that
similar application under Order 6 Rule 17 CPC was
moved in the year, 2019 and the same was rejected on
C.M.P No.165 of 2025 Page 4 of 14
2nd April, 2019 and it was followed by a request to
strike off a particular word from the plaint in terms of
under Order 6 Rule 16 CPC and the same was denied
on 16th May, 2019 including a request to deliver
interrogatories as per under Order 11 Rules 1 & 4 CPC
and notwithstanding above, ignoring the objection of
the petitioner as per Annexure-9, the proposed
amendment of the plaint was allowed vide Annexure-
13 and it was to overcome the hurdle of limitation for
the fact that the plaint is hit by Order 7 Rule 11(d) CPC
but unfortunately, learned Court below leaving aside
everything permitted the same, which was once
rejected and the same was never challenged thereafter
by the opposite party, hence, the impugned decision
dated 24th December, 2024 in the suit is bad in law and
therefore, calls for interference.
5. Mr. Mohanty, learned counsel for the opposite
party, on the other hand, submits that there is no
illegality committed by learned Court below having
allowed the amendment of the plaint in terms of Order
6 Rule 17 CPC, as the same is not to alter the nature of
the suit. The further submission is that any such
amendment to incorporate specific words is not to
subject the petitioner to any prejudice as in any case
the opposite party is required to prove such facts
C.M.P No.165 of 2025 Page 5 of 14
pleaded with an equal opportunity for the other side to
rebut the same.
6. In course of hearing, Mr. Mishra, learned counsel
for the petitioner refers to a decision of the Apex Court
in Revajeetu Builders and Developers Vrs.
Narayanaswamy & Sons and others (2009) 10 SCC
84 to contend that costs should be imposed on the
opposite party for filing similar applications seeking
amendment, etc. designed to delay the disposal of the
suit taking into account the principles enumerated
therein. As earlier stated, after the amendment of the
plaint was allowed in favour of the opposite party, the
petitioner challenged the same in CMP No.926 of 2022
and it was followed by Annexure-11 for a fresh
consideration by learned Court below taking into
account the rival contentions of the parties and
providing opportunity of hearing to both the sides. On
a reading of the impugned order dated 24th December,
2024 at Annexure-13, it is made to understand that the
learned Court below without taking into account the
objection of the petitioner with a plea that a similar
application under Order 6 Rule 17 C.P.C. seeking the
same relief was rejected followed by dismissal of
applications under Order 6 Rule 16 CPC and Order 11
Rules 1 & 4 C.P.C. proceeded to allow the amendment
C.M.P No.165 of 2025 Page 6 of 14
of the plaint. Indeed, no discussions have been made
by learned Court below on the specific objection of the
petitioner pursuant to the remand order dated 8th
December, 2022 in CMP No.926 of 2022. Rather, the
learned Court below has allowed the amendment on the
premise that the opposite party is the master of the suit
and can amend the plaint if situation demands. A
formal order of the request for amendment of the plaint
has been passed by learned Court below as it appears
without considering the earlier rejection on similar
ground and for a same relief. It is not in denial that the
application under Order 6 Rule 17 CPC as per
Annexure-3 series received serious objection from the
side of the petitioner and it was followed by an order
dated 2nd April, 2019 denying the same with a direction
for him to lead evidence on the date fixed i.e. 9 th April,
2019. Truly speaking, the contents of Annexure-3
series with the proposed amendment are no different
from Annexure-8. The specific words in para-3 and 4
of the plaint with regard to the last two cheques issued
by the petitioner have been sought to be amended on
the ground that the same is essential for a just decision
in the suit. As earlier stated, the said amendment was
declined by order dated 2nd April, 2019 at Annexure-4.
Nothing has been brought to the notice of the Court by
C.M.P No.165 of 2025 Page 7 of 14
Mr. Mohanty, learned counsel for the opposite party,
whether the order i.e. Annexure-4 was ever challenged.
Instead, Mr. Mishra, learned counsel for the petitioner
submits that denying the proposed amendment under
Order 6 Rule 17 C.P.C. vide Annexure-4, the issue has
attained finality. It is not in dispute that the opposite
party, after the earlier amendment was refused, had
moved applications under Order 6 Rule 16 C.P.C.
dismissed on merit by order dated 16th May, 2019 and
one under Order 11 Rules 1 & 4 was rejected. The plea
of the petitioner is that in case, the proposed
amendment is allowed, it would bring the suit within
limitation when the consistent plea is that the same is
barred by time and hence, hit under Order 7 Rule 11(d)
CPC. When the earlier amendment was disallowed by
order dated 2nd April, 2019 and on a comparison of the
contents therein alongside Annexure-8, the question is,
whether, learned Court below was right in accepting
the amendment of the plaint of similar nature.
7. A plea of res judicata has been advanced by Mishra,
learned counsel for the petitioner on the ground that
earlier amendment was declined, it was, hence, not to
be entertained at a later stage of the suit, all the more
when, the opposite party did not challenge the rejection
order dated 2nd April, 2019 (Annexure-4). On the
C.M.P No.165 of 2025 Page 8 of 14
contrary, Mr. Mohanty, learned counsel for the
opposite party would submit that the proposed
amendment having been rightly allowed, the same
should not be disturbed for the fact that it is necessary
for proper and effective adjudication of the lis between
the parties. The principle of res judicata applies as
between two stages in the same litigation so that if an
issue has been decided at an earlier stage against a
party, it cannot be allowed to be re-agitated by him at a
subsequent stage in the same suit or proceeding and
such is the settled position of law and in that
connection, a reference to a decision of the Apex Court
in C.V. Rajendran and another Vrs. N.M.
Muhammed Kunhi (2002) 7 SCC 447 may be
referred to. In order to decide, whether, the principle of
res judicata is applicable in the case at different stages
of proceeding, it is necessary to examine inter alia the
nature of the proceedings, scope of inquiry which the
objective law proceeds for the decision being reached
as well as the specific provisions made touching such
decision. The above principle is based on the need of
achieving finality with respect to judicial decisions.
The underlying doctrine with regard to Section 11 CPC
is that none should be vexed twice on the same subject
matter. Such is the view of the Apex Court in
C.M.P No.165 of 2025 Page 9 of 14
Bhabanarayanas Wamivari Temple Vrs. Vedapali
(1971) 1 SCJ 215. In fact, Section 11 CPC embodies
the rule of conclusiveness as evidence or bars as a plea
of an issue in an earlier suit founded on a point in
which the matter is directly and substantially in issue
and became final. As earlier stated, res judicata is to
apply in the same proceeding at a subsequent stage of
the suit. In case, any application is moved with a
similar relief but the same is based on new facts, any
such earlier order is not to stand as a bar. In
Mahavelikara Ex-servicemen’s Co-operative
Society Vrs. Rajamma 1986 KLT 513, it has been
concluded that the doctrine of res judicata is based on
the norm of the public policy on the one hand and a
rule of private justice on the other side; the public
policy is the general interest of the community in the
determination of dispute and in the finality and
conclusiveness of judicial decisions; the private justice
is based on the right of an individual to be ensconced
from vexatious suits being filed at the instance of the
adversary, whose superior opulence, resources and
power, unless clipped by estoppel gravitate and weigh
down judicially declared rights. In Delhi Transport
Corporation Vrs. D.T.C. Mazdoor Congress AIR
1991 SC 101, the Apex Court held and observed that
C.M.P No.165 of 2025 Page 10 of 14
Article 14 read with Article 16(1) of the Constitution of
India contemplates right to equality or an equal
treatment consistent with the principles of natural
justice and any law made or action taken by the
employer, corporate, statutory or instrumentality under
Article 12 must act fairly, justly and reasonably as right
to fair treatment is an essential inbuilt of natural justice
and while dealing with the principle of res judicata vis-
à-vis equality and non-arbitrariness, it was lastly
concluded that exercise of unbridled and uncanalised
discretionary power impinges upon the right of a
citizen; vesting of discretion is no wrong provided it is
exercised purposively, judiciously and without
prejudice; wider the discretion, the grater the chances
of abuse; absolute discretion is destructive of freedom
than of man’s other inventions; absolute discretion
rather marks the beginning of the end of the liberty. To
add to the above, the Apex Court in Supreme Court
Employees Welfare Association Vrs. Union of India
and others AIR 1990 SC 334, it has been held that the
doctrine of res judicata is about laying down the
finality of litigation between the parties and when a
particular decision has become final and binding
between the parties, it cannot be set at naught even on
C.M.P No.165 of 2025 Page 11 of 14
the ground that such a decision is violative of Article
14 of the Constitution of India.
8. In view of the above settled legal position discussed
in brief, the Court has to determine, whether, learned
Court below was justified to formally allow the
amendment of the plaint when its earlier decision dated
2nd April, 2019 at Annexure-4 is staring at the opposite
party, since not challenged thereafter. It is not
understood what prevailed upon the opposite party to
remain silent without challenging the rejection order
i.e. Annexure-4. Quite interestingly, two more
applications followed suit and it was as per under
Order 6 Rule 16 CPC and Order 11 Rules 1 & 4 C.P.C.
and both have been dismissed as well. The relief
sought for by the opposite party in all such applications
moved earlier to Annexure-8 apparently relate to and
for similar relief. In fact, an attempt was made by the
opposite party seeking leave to deliver interrogatories
in terms of Order 11 Rules 1 & 4 C.P.C. but the same
was also declined. The Court is not aware of whether
the orders of learned Court below while dealing with
applications under Order 6 Rule 16 C.P.C. and Order
11 Rules 1 & 4 C.P.C. have been challenged by the
opposite party. Nevertheless, the Court finds that the
entire effort on the part of the opposite party has been
C.M.P No.165 of 2025 Page 12 of 14
to incorporate the proposed amendment directly or
indirectly with the elicitation through the
interrogatories but has been denied all along. As far as
the amendment as per Annexure-3 series is concerned,
it was dismissed but with a similar relief, Annexure-8
was moved and the opposite party became successful
in the second attempt with the impugned order at
Annexure-13 in his favour upon its disposal and it was
consequent upon the order of this Court in CMP
No.926 of 2022. The Court is of the humble view that
once amendment was declined earlier, it stands as a
stumbling block for the opposite party since rule of res
judicata is to apply and in view of the settled law
discussed hereinbefore, such rule is applicable at
different stages of a suit or proceeding. If the proposed
amendment as per Annexure-3 was dismissed on merit
and there are no fresh facts to be the basis for the
application at Annexure-8, the subsequent demand for
amendment of plaint is certainly hit by res judicata. It
is to reiterate that the other two applications at the
behest of the opposite party proved to be unsuccessful
and under such circumstances, learned Court below, in
the considered view of the Court, could not have
allowed a similar amendment to the pleading. Any such
decision is like review of the earlier order on
C.M.P No.165 of 2025 Page 13 of 14
amendment disallowed against the opposite party, who
having not challenged the same either. With such a
conclusion reached at keeping in view the settled legal
position, the impugned order as per Annexure-13
cannot be sustained in law, hence, it calls for
interference.
9. Accordingly, it is ordered.
10. In the result, the petition stands allowed. As a
necessary corollary, order dated 24th December, 2024
as at Annexure-13 passed in connection with C.S.
No.3275 of 2014 is hereby set aside with a direction to
learned 3rd Additional Civil Judge (Senior Division),
Cuttack to proceed to deal with the suit for its
expeditious disposal as per and in accordance with law.
In the circumstances, however, there is no as to costs.
(R.K. Pattanaik)
Judge
Balaram
Signature Not Verified
Digitally Signed
Signed by: BALARAM BEHERA
Reason: Authentication
Location: OHC, CUTTACK
Date: 10-Jun-2025 16:20:56
C.M.P No.165 of 2025 Page 14 of 14
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