The High Court of Calcutta, while disposing of a petition filed against an order passed by the Civil Judge vide which the learned court rejected an application under Order 6 Rule 17 of the Code of Civil Procedure, held that amendment of the plaint should be allowed liberally, except when the amendment sought to be incorporated was ex facie barred by limitation or where the plaintiffs wanted to incorporate contrary pleas.
Brief Facts:
The petitioners wanted to incorporate subsequent events with regard to dispossession in respect of the suit property with an additional prayer for recovery of khas possession. The applications for amendment were rejected on the ground that on an earlier occasion, incorporation of the correct R.S. Khatian number had been rejected by the court. With regard to the incorporation of the alleged subsequent events of dispossession and prayer for recovery of khas possession, the learned court took into account the merits of the said amendment and decided the truth and veracity thereof. The learned court held that the allegations of dispossession were based on distortion of facts.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the Petitioner submitted that the Court should interfere with the order impugned in view of the fact that mere correction in the schedule could not be denied at the very initial stage of the suit. She argued that irrespective of the orders passed in the writ petition and the connected mandamus appeal, the fact that the plaintiffs lost their possession in respect of the property in question during the pendency of the suit, was required to be incorporated for proper adjudication of the dispute between the parties and the prayer for recovery of possession should also be allowed. The learned court could not have gone into the merits of the amendment.
Contentions of the Respondent:
The learned counsel appearing on behalf of the Respondent submitted that as the dispossession was in terms of the order of the writ court and the plaintiffs were also unsuccessful in the appeal, the learned judge had rightly rejected the said application. He contended that filing of successive applications for correction of the khatian numbers was also improper. Thus, the court did not act beyond jurisdiction in rejecting the applications for amendment.
Observations of the court:
The court noted that amendment of the plaint should be allowed liberally, except when the amendment sought to be incorporated was ex facie barred by limitation or where the plaintiffs wanted to incorporate contrary pleas.
The Court observed that the merits of the amendment was not to be looked into by the learned court. Whether the contentions of the plaintiffs were correct or not would be a matter of evidence. The petitioners prayed for correction of the schedule in the application for injunction as also in the plaint. Such correction was formal in nature and did not change the nature and character of the suit. It also did not take away any vested right which may have accrued in favour of the defendants. The learned judge, while discussing the scope of an amendment application, had gone beyond the pleadings to decide whether such prayer and additional pleadings were available to the petitioners or not.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the amendment of the schedule is allowed both in the plaint and in the injunction application.
Case Title: Sri Anup Kumar Sharma & Ors. v Smt. Shanti Rani Roy & Ors.
Coram: Hon’ble Justice Ajoy Kumar Mukherjee
Case No.: C.O. 1872 of 2023
Advocate for the Petitioner: Ms. Sohini Chakraborty
Advocate for the Respondent: Mr. Rwitendra Banerjee
Read Judgment @LatestLaws.com
Picture Source :
