The Calcutta High Court allowed a revision application filed challenging an order dated June 9, 2022, passed by the learned Civil Judge (Senior Division) vide which an application for amendment of the written statement filed by the added defendant no.4 was rejected by the Learned Judge. The Court observed that all amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side.
Brief Facts:
By the order impugned, the learned court below rejected an application for amendment of the written statement filed by the added defendant no.4. The defendant no.4 is the lessee in respect of a portion of the suit property that forms a part of the joint undivided property. During the pendency of the partition suit, some property that was included in the hotchpotch had been transferred inter se between the parties. As a result of which, the landlord and/or the lessor of defendant No. 4 changed. This aspect was sought to be brought in by defendant No. 4, by filing an application for amendment. The application for amendment was filed in order to incorporate the factum of transfer of 1/3rd share of Khandobala Dasi to the Bandopadhyays, by virtue of a deed of sale. On account of subsequent transfers, the shares were considerably reduced.
Defendant no.4 was impleaded as a party by the plaintiff. The assumption is that defendant no.4 was a necessary and proper party according to the plaintiff. Thus, defendant no.4 has the right to rebut such assertion of the plaintiffs and also raise further pleas.
Contentions of the Opposite Party:
The Learned Counsel for the Respondent submitted that the lessee does not have any right to challenge the title of the lessor or the title of the co-sharers of the lessor. The right of the lessee would not be affected by the aforementioned transfers of the property which was sought to be incorporated by way of an amendment.
Observations of the Court:
The Court noted that whether the quantum of property sought to be partitioned stood reduced or whether by virtue of the sale by Khandobala to the Bandopadhyays, some property was taken out from the joint property and had become exclusive properties of the Bandopadhyays and hence not amenable to partition are matters on merit. The genuineness and correctness of the statements made in the amendment application shall be decided at the trial, on evidence.
Further, the Court observed that the learned court below ought not to have rejected the application for amendment on the ground that the lessee did not have any right to challenge the title of the lessor. Whether the amendment will affect the quantum of the property sought to be partitioned or whether the area purchased by the Bandopadhyays and leased out to defendant no.4 would 4 be amenable to the partition suit, are matters which will be decided on evidence.
The Court reiterated that all amendments are to be allowed which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side.
The decision of the Court:
The Calcutta High Court, allowing the application, held that the order impugned is set aside.
Case Title: Sri Swaraj Majhi vs Sri Phelu Ram @ Phelu Dhan Hazra & Ors.
Coram: Hon’ble Justice Shampa Sarkar
Case no.: C.O. 1879 of 2022
Advocate for the Petitioner: Mr. Tanmoy Mukherjee
Advocate for the Opposite Party: Mr. Soumik Ganguly and Mr. Prosenjit Barman
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