The Calcutta High Court allowed a Revision Application contesting the order dated 26th June 2019 passed by the learned Civil Judge (Junior Division) vide which it allowed the application filed by the defendant for the amendment of the plaint. The Court observed that Proviso appended to Order VI, Rule 17 of the Code puts an embargo on the exercise of the Court’s jurisdiction unless the case of “due diligence” is raised and established.
Brief Facts:
The predecessor in interest of the opposite parties herein namely late Subhra Dey, being the plaintiff filed aforesaid suit for recovery of possession and mesne profit against the defendant/petitioner herein. During the pendency of the suit, the original plaintiff Subhra Dey died on 4th December, 2015 and the present plaintiffs/opposite parties were substituted in her place in 2016. On that date of argument learned Court below asked the plaintiffs/petitioners to clarify their status in respect of the disputed premises and further pleased to fix the next date on 9th April 2019 and asked the substituted plaintiffs for taking proper steps, if any.
Subsequently, after completion of the argument on behalf of the respective parties, the plaintiffs/opposite parties filed the impugned application under Order VI, Rule 17 of the Code of Civil Procedure for amendment of the plaint which the Court below, by the impugned order, allowed. Being aggrieved, the petitioner has approached this Court.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the Court below acted illegally and with material irregularities in passing the impugned order and erred in holding that the amendment sought by the plaintiffs/opposite parties are subsequent events. In fact, the plaintiffs/opposite parties were substituted long back in the year 2016 and the substituted plaintiffs ought to have taken steps for amendment of the plaint, if any, in support of their grounds for eviction but they have filed the same after completion of the argument made by the respective parties, which is barred under the proviso to Order VI, Rule 17 of the Code of Civil Procedure.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that plaintiff No. 2, Smt. Suchisimita Sadhu (Dey), after the death of the original plaintiff, applied for the license of M.R. Dealership, which is under process, which fact plaintiffs wanted to incorporate in the plaint by way of amendment to justify their future requirement and as such the Court below was justified in passing the order impugned and such order does not call for any interference.
Observations of the Court:
The Court noted that the contention sought to be incorporated in the plaint to establish the case of reasonable requirement is speculative. There is no amount of certainty that plaintiff No. 2 will be awarded said license by the competent authority in the future. There is also nothing to show that she has at all been assured to grant such license so that one can anticipate her need in the foreseeable future in terms of future requirements as put forward by the original plaintiff. The expression used in Section 6 of the Act of 1997 is not “desire” but “requires”, which involves something more than a wish. Such amendment is not at all required for the purpose of adjudication for the real controversy between the parties
Further, the Court observed that the plaintiffs have to explain why they could not have raised their point before the trial commenced despite exercising due diligence. No such explanation has been offered in prayer for amendment. Without there being any finding as to due diligence as contemplated in the proviso to Order VI, Rule 17, the Court below ought not to have allowed the amendment. Proviso appended to Order VI, Rule 17 of the Code puts an embargo on the exercise of the Court's jurisdiction unless the case of “due diligence” is raised and established. In the absence of a case of due diligence, Court has no jurisdiction at all to allow the prayer for amendment of the pleading.
The decision of the Court:
The Calcutta High Court, allowing the petition, held that the impugned order is set aside.
Case Title: Purna Chandra Garain vs Somnath Dey & Ors.
Coram: Hon’ble Justice Ajoy Kumar Mukherjee
Case no.: C.O. 2731 of 2019
Advocate for the Petitioner: Mr. Kuntal Roy
Advocate for the Respondents: Mr. Pinaki Ranjan Mitra
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