Page 1 of 4. IN THE HIGH COURT OF ORISSA AT CUTTACK CMP No.1645 of 2025 Dipak Kumar Das ..... Petitioner Represented by Adv. - Biswajit Mohapatra -versus- Rukmani Das ..... Opposite Parties Represented by Adv. - CORAM: MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 02.02.2026 Order No. 03. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner. Perused the CMP application as well as the prayer made therein. 3. By filing the present CMP application under Article 227 of the Constitution of India, the Plaintiff-Petitioner has approached this Court challenging the order dated 09.09.2025 passed by the learned 1st Additional Senior Civil Judge, Balasore in C.S. No.765/1017/2019-I. By virtue of the impugned order dated 09.09.2025 at Annexure-3, the learned trial Court has rejected the prayer of the Petitioners-Defendants Nos. 1 to 3 for amendment of the W.S. under Order 6 Rule 17 of the CPC. 4. Learned counsel for the Petitioner at the outset contended that initially the Defendants filed the W.S. within time. However, Page 2 of 4. since the same was filed hastily due to shortage of time, certain facts were not pleaded properly. Later on, the Defendant Nos. 1 to 3 came to learn that certain materials facts have not been pleaded in the W.S. Learned counsel for the Petitioner contended that in a suit for partition all the parties are to be treated as if they are the plaintiff in the suit and that they have a substantial stake involved in the suit schedule properties. 5. Learned counsel for the Petitioner-Defendant at this juncture contended that while preparing and filing the W.S. hurriedly, they forgot to mention about the previous suit bearing No.18 of 1989 properly. Subsequently, they obtained a certified copy of the original suit bearing No.18 of 1989 and came to learn that one Kabitarani Rout and her husband had no right to file a suit for partition in respect of the property of their father namely, Raghunath Das. It was also alleged that the suit property had earlier been partitioned by way of a compromise. Accordingly, by virtue of the amendment application, the Defendant Nos. 1 to 3 prayed to bring on record the aforesaid fact. 6. On perusal of the impugned order it appears that in order dated 09.09.2025, the learned trial Court has categorically indicated that the examination-in-chief of the Plaintiff No.2 (P.W.1) has been completed and the cross-examination of the said witness was deferred on the application of the Defendants which means the plaintiff has not been cross-examined as of now. Learned counsel for the Petitioner further argued that since the plaintiff has not been in cross-examined and his evidence is not Page 3 of 4. yet over, therefore, a due diligence test as provided in the proviso to Order 6 Rule 17, would not be applicable to the facts of the present case. By way of an amendment the Defendants tried to bring on record the fact with regard to the earlier Original Suit No.18 of 1989. However, the learned Civil Judge (Jr. Division), Balasore has categorically held that such facts are already there in the W.S. filed by the Defendants. The learned trial Court has instead rejected regular amendment to the W.S. This Court is of the view that the Court should have allowed the amendment considering the facts that the Defendants wanted amendment to the W.S. that too before the examination of the Plaintiffs is concluded. 7. Although notices were issued to the Opposite Parties and despite valid service of such notice, none appears for the Opposite Parties. On a careful scrutiny of the impugned order dated 09.09.2025 and after considering the submission made by the learned counsel for the Petitioner, this Court is of the view that the amendment sought for by the Defendants in W.S. is formal in nature though the same was filed belatedly. However, the learned trial Court could not have rejected the same by adopting an overly technical approach. Moreover, the Parties to the suit be provided full opportunity to bring on record all material facts for a just adjudication of the dispute. The prejudice caused to the plaintiffs could very well be compensated by imposing cost on the defendants for such delay. Accordingly, order dated 09.09.2025 is hereby set aside and the prayer for amendment on the W.S. is Page 4 of 4. allowed, subject to payment of a cost of Rs.1000/- (rupees one thousand) to the Plaintiffs by the Defendant. 8. With the aforesaid observation and direction, the CMP application stands disposed of. ( A.K. Mohapatra) Judge Sisir Designation: Personal Assistant