B.K.MISRA, J. W.P.(C) NO.25961 OF 2011 (Decided on 02.12.2011) KALANDI RANA ………Petitioner .Vrs. SRI SRI BIRAJA THAKURANI, JAJPUR. ……..Opp.Party CIVIL PROCEDURE CODE, 1908 (ACT NO.5 OF 1908) – ORDER 6, RULE 17. For Petitioner - Mr. Samir Kumar Misra, J.Pradhan, P.Prusty, D.K.Pradhan, D.Samal & S.Mohapatra. For Opp. Party - Mr. Mahadev Mishra, Miss M.Mishra & Mr. G.C.Bhuyan. B.K.MISRA, J . The present petitioner, who was the appellant in R.F.A. No.62 of 2006 being aggrieved with the order dated 14.9.2011 (Annexure-4) passed by the learned Additional District Judge, Jajpur in rejecting his prayer for amendment of the written statement has approached this Court for quashing the impugned order at Annexure-4. 2. I may mention here that Sri Sri Biraja Thakurani (the present opposite party in this writ petition) represented by the Managing Trustee, namely, the Sub-Divisional Officer, Jajpur had instituted Title Suit No.102 of 1986 impleading the present petitioner as defendant for declaration of right, title and interest and confirmation of possession over the suit land. It was also prayed by the plaintiff that the defendant has no right, title and interest over the house standing on the suit plot and to give vacant possession within a period to be fixed by the Court failing which he be evicted through the process of law and also for permanent injunction. The present petitioner who was defendant in the said suit contested the same by filing written statement. The suit was decreed on contest against the defendant and the defendant was directed to vacate the suit land and the house within six months failing which defendant would be at liberty to get the decree executed through the Court. 3. Challenging the said judgment and decree, the loosing defendant filed an appeal which was registered as R.F.A. No. 62 of 2006 in the court of learned Additional District Judge, Jajpur. 4. During the pendency of the said appeal, a petition was filed under Order 6, Rule 17 of the Civil Procedure Code (for short C.P.C.) with a prayer for amending the written statement contending therein that because of inadvertence and bonafide mistake some material facts could not be stated in the written statement which could only be detected at the appellate stage. It is the case of the present petitioner that the proposed amendments would in no way change the nature and character of the suit in any manner nor would cause any prejudice to the respondent. The proposed amendment which was prayed to be incorporated in the written statement in para-15 is to the effect that “in the year 1955, Dhruba Rana was inducted as a tenant in respect of the suit land for agricultural purpose and it was agreed that in lieu of rent, Dhruba Rana, the lessee was to give flower to the Deity. Subsequent to lease, Dhruba constructed a house on the suit land in the year 1940 and resided there. Dhruba Rana was possessing the suit property as a tenant under the plaintiff and in lieu of rent supplied flowers to the Deity and acquired occupancy right over the suit land by the year 1947.” 5. Such prayer of the appellant for amending the written statement was vehemently opposed to by the respondent on the ground that by the proposed amendments to the written statement the appellant wants to introduce new facts which would completely change the nature and character of the suit and besides that when suit which was filed in the year 1986, has been disposed of on contest after parties led evidence and only to nullify the judgments and decree of the court below, the new facts are being tried to be introduced. 6. Learned Additional District Judge, Jajpur by the impugned order disallowed the prayer of the appellant for amendment of the written statement. 7. I have heard the learned counsel for the parties and perused the petition filed under Order 6, Rule 17 of the C.P.C. (Annexure-2) and also the impugned order at Annexure-4. 8. Learned counsel appearing for the petitioner contended that law is quite well settled that amendment can be allowed at any stage and there is no impediment or bar for an appellate court permitting the amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the appellate court should observe the well known principles subject to which the amendments of pleadings are usually granted. One of the circumstances which will be taken into consideration before an amendment is granted as to the delay in making the application seeking such amendment and, if made at the appellate stage, the reason why it was not sought in the trial court (A.I.R. 1979 SC 551 Ishwar Das –V- State of Madhya Pradesh and others). 9. It is the settled position of law that while considering an application under Order 6, Rule 17 of the C.P.C. certain important factors are to be borne in mind, namely:- (1) Whether the amendment sought is imperative for proper and effective adjudication of the case? (2) Whether the application for amendment is bona fide or mala fide? (3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? And 2 (6) As a general rule, the court should decline amendments if a fresh suit on the amendment claims would be barred by limitation on the date of application. 10. In the instant case, the amendment which has been sought for by the present petitioner was at the appellate stage and that too of the written statement filed by the present petitioner as the defendant in Title Suit No.102 of 1986. In the said written statement so filed by the present petitioner, it was averred that one Dhruba Rana was inducted as a tenant in respect of the suit land and as per the agreement the said Dhruba Rana was to supply flower to the deity in lieu of rent. Dhruba Rana constructed a house over the suit land and resided there and after his death his wife Jasoda brought the defendant, who is ‘Bhanaja’ of late Dhruba Rana (sister’s son) and they lived thereon. On the death of Jasoda, it is the case of the defendant that he inherited the suit property and possessed the same as a tenant under the plaintiff and in lieu of rent supplied flowers to the deity. 11. For the sake of clarity, I may mention here that the specific case of the plaintiff is that the suit house was constructed in the year, 1950 by the management of the temple and Dhruba Rana was allowed to reside in the suit house with his wife. But in 1952 Dhruba Rana left Jajpur and thereafter was unheard of for which the Managing Trustee of the temple permitted one Harekrushna Mohanty to occupy the suit house so also the brother of Jasoda and one Trinath Jena along with wife of the said Dhruba Rana. It is the further case of the plaintiff that Dhruba, Jasoda, Harekrushna, Brudaban and Trinath were living in the suit house with the permission of the Managing Trustee of the temple and in the year, 1976 when the Managing Trustee with the approval of the Trust Board asked Jasoda to vacate the house and the land by withdrawing permission given to Dhruba Rana as the Trust Board wanted to raise a permanent building over the suit land by demolishing the old dilapidated thatched house. On the application of Jasoda and taking into consideration her age, the Trust Board accorded permission to Jasoda to reside in a room on the western part of the suit land. But she was asked to vacate the suit house and the land in favour of the plaintiff. It is also the specific case of the plaintiff that the suit land was settled with the plaintiff in a proceeding under Section 6 & 7 of the Orissa Estate Abolition Act and the plaintiff paid rent as well as Municipality Holding Tax in respect of the suit land. 12. It is an admitted fact that when the written statement was filed in the Court below the present petitioner, who was defendant in the said suit though had full knowledge of the facts but he did not choose to incorporate the facts which now he proposes to insert in the written statement by way of amending the same at the appellate stage. It is seen that the learned Civil Judge (Sr.Divn.), Jajpur on contest has disposed of the said suit as per the issues settled. In the written statement filed in the Court below, the defendant had never averred that he was inducted as a tenant in the year, 1940 for agricultural purpose and thus acquired occupancy right over the suit land by the year 1947. 13. In the instant case, the defendant seeks to introduce new facts through the proposed amendment of his pleadings which is entirely inconsistent with the written statement which he filed in the Court below and if the proposed amendment would be allowed virtually, it will introduce new facts and would change the nature and character of the pleadings. This is a peculiar case where after disposal of the suit on contest and 3 having lost the suit in the Court below, the defendant at the appellate stage wanted to amend the written statement by introducing new facts. 14. Learned Appellate Court in the impugned order at Annexure-4 has delved deep into the matter and by a well reasoned order disallowed the prayer of the petitioner for amendment of the written statement. 15. In view of the above, I do not find any illegality and irregularity or manifest error of law in the impugned order in rejecting the prayer for amendment of the written statement. Accordingly, the writ petition being devoid of merit, stands dismissed. Writ petition dismissed. 4