The Calcutta High Court partly allowed an application praying for amendment in the cause title, body, and schedule of the plaint. The Court observed that in the Code, specific provisions have been provided for the substitution of the legal heir of the plaintiff on the death of the plaintiff; there is also a specific provision provided for the addition of parties.
Brief Facts:
Plaintiff no.4 died on 20.11.2022 leaving behind his wife Bharati Mitra, thus the name of the original plaintiff no. 4 is to be deleted and the name of the wife of plaintiff no. 4 is to be added. Plaintiff no. 4 was also the power of attorney holder of plaintiff no.5 and now one Amrita Mitra is the power of attorney holder of plaintiff no. 5 and in the cause title after the description of plaintiff no. 5, the name of Argha Mitra is to be deleted and the name of Amrita Mitra is to added as power of attorney holder of plaintiff no. 5 in terms of power of attorney dated 30.10.2020.
Further, the names of Amrita Mitra and Amitabh Mitra are to be added as plaintiffs nos. 8 and 9. The plaintiffs submit that in paragraphs 1 and 4 and in Schedule A property is also required to be amended by incorporating the details of the suit premises.
Contentions of the Plaintiffs:
The learned counsel for the Plaintiffs submitted that the amendments as sought for by the plaintiffs are formal in nature and will not change the nature and character of the suit. He submits that the amendment is very much necessary for proper adjudication of the suit and if the amendment as sought by the plaintiffs is not allowed, the plaintiffs will suffer irreparable loss and injury.
Contentions of the Defendants:
The learned counsel for the Defendants submitted that the amendment sought by the plaintiffs will change the nature and character of the suit as the plaintiffs have initially prayed for only possession and now the plaintiffs intend to delete the word possession and add the word eviction and ejectment in the prayer portion and in paragraph 8 of the plaint. The defendant further contended that in the original affidavit of the plaint, all the plaintiffs have signed but, in the Re-Affirmation, only one plaintiff has affirmed the affidavit and no competency has been filed on behalf of other plaintiffs.
Observations of the Court:
The Court noted that the plaintiffs intend to elaborate the description of the suit property in paragraphs 1, 4, and Schedule “A” of the Plaint. In paragraph 8 and the prayer portion of the plaint, the plaintiffs intend to pray for eviction/ejectment of the defendant though the original prayer of the plaintiffs in the suit was only for possession of the suit property.
The Court observed that the said amendments will not change the nature and character of the suit and the said amendment is formal in nature. However, as regards the deletion of the name of Plaintiff No. 4 on account of the death of Plaintiff No. 4 and substitution of the legal heir of Plaintiff No. 4, and addition of the name of Plaintiff nos. 8 and 9, the Court said that it is not permissible within the preview of the provisions of Order VI, Rule 17 of the Code of Civil Procedure. In the Code specific provisions have been provided for substitution of the legal heir of the plaintiff on the death of the plaintiff. In the said Code, there is also a specific provision provided for the addition of parties. Hence, substitution of the legal heirs of Plaintiff no. 4 and addition of plaintiffs nos. 8 and 9 is not permissible under Order VI, Rule 17 of the Code of Civil Procedure.
The decision of the Court:
The Calcutta High Court, partly allowing the appeal, held that the prayer of the plaintiffs only with respect to the amendment of paragraphs 1, 2, 4, 8, prayer (a), Schedule A, and concise statement of the proposed amendment is allowed.
Case Title: Thakurani Shree Shree Durga Mata Jew & Ors. vs Kangali Charan Raul & Anr.
Coram: Hon’ble Justice Krishna Rao
Case no.: IA No: GA 4 of 2023
Advocate for the Plaintiffs: Mr. Debdatta Sen
Advocate for the Defendants: Mr. S.N. Arefin
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