CO/2841/2014
2021 Latest Caselaw 6593 Cal

               IN THE HIGH COURT AT CALCUTTA
                CIVIL REVISIONAL JURISDICTION


Present:

The Hon'ble Justice Ajoy Kumar Mukherjee.

                           C.O. 2841 of 2014
                           SK. SIRAJUL & ORS.
                                  VERUS
                      MUSSAMAT JELEHAR BIBI & ORS.


For the petitioner:          Mr. Supriyo Chattaopadhay,
                             Mr. S.C. Dhara.


For the opposite party:      None.



Heard on:                    21.12.2021



Judgement on:                23.12.2021



Ajoy Kumar Mukherjee, J.

1. CAN 6977 of 2019 is taken up for hearing. It is submitted that on the

death of Nur Mohammad his widow Mst. Jamila Bibi has already been name as

opposite party no. 4 but their two sons namely Sirajul Islam and Sk.

Sukuruddin need to be added as opposite party no. 4(Ka) and 4 (Kha) in the

instant C.O. 2841 of 2014 and also in CAN 6977 of 2019. It is further

contended that opposite party no. 5 namely Mst. Saira Bibi died on 31.03.2019

and her legal heirs namely Sk. Sarbak and Mst. Ankhi and Jarina Bibi are

required to be substituted in place of aforesaid deceased Saira Bibi as their

names have already been substituted by the learned Trial Court.

2. Similarly, the name of Dula Bibi is required to be substituted by Sk. Ujir

and Aijul Haque as opposite party no. 6 (Ka) and 6 (Kha) in the aforesaid cases

as their names have been substituted by the Trial Court. Further case is that

opposite party no. 7 Ajiman Bibi died on 20.09.2010 leaving behind two sons

Sk. Ajibar and Sk. Aijul and as such their names are required to be substituted

in the present cases in place of deceased Ajiman Bibi as 7 (Ka) and 7 (Kha) as

their names have already been substituted by the learned Trial Court.

3. Moreover, opposite party no. 9 Sk. Samser died leaving behind his widow

Mst. Obiran Bibi and sone Atabul whose names are required to be substituted

as opposite party no. 9 (Ka) and 9 (Kha) in the present case in place of

deceased Sk. Samser and their names have been substituted by the Trial

Court. Similarly, the defendant no. 13 Sk. Seiruddin died leaving behind Sk.

Rabiul, Sk. Habibul and Sk. Mehebul and as such their names are required to

be substituted as opposite party no. 13 (Ka) to 13 (ga) in place of deceased Sk.

Seiruddin in the present cases. The defendant no. 16 Sk. Aijul died on

27.08.2010 leaving behind petition mentioned 5 sons and their names are

required to be substituted as 16 (Ka) and 16 (Cha) in place of Sk. Aijul and

their names have already been substituted by the learned Trial Court. The

defendant no. 21 Mst. Khodeja died on 12.06.2015 and her legal heirs have

already been substituted and the name of Mst. Khodeja Bibi is required to be

deleted. All the aforesaid Prayer for substitution in C.O. 2841 of 2014 and also

in CAN 6977 of 2019 is allowed. Office is directed to do the needful in respect

of the substitution as above, CAN 6977 of 2019 is thus disposed of accordingly.

4. Now, C.O. 2841 of 2014 is taken up for consideration. Being aggrieved

by order dated 30th June, 2014 passed by the learned Civil Judge (Senior

Division) Second Court at Tamluk, District. Medinipur (East) in Title Suit No.

80 of 293, present revisional application has been preferred. By the order

impugned the learned Trial Court was pleased to allow the prayer for

amendment, filed under Order VI Rule 17 of the CPC in part. By the proposed

amendment plaintiff wanted to incorporate 13 items in the Plaint by way of

amendment out of which the learned Trial Court was pleased to allow item

mentioned in para 5 and 11 (Ka) in the schedule of amendment petition as

those amendments are required to determine the real controversy between the

parties. Remaining items in the schedule of amendment petition were rejected

by the learned Trial Court as learned Trial Court observed that incorporation of

plot no. 103/1054 and/or impleading defendant nos. 25 and 26 are not

necessary as it has not been shown by plaintiff as to how those persons are

interested in the suit land and what is the necessity of inserting plot no.

103/1054 in the schedule of the plaint specially when in the answer to

interrogatories, no such name or plot appeared as necessary party or common

property of the parties and learned Trial Court was also of the view that if the

said portion of amendment is allowed it will make out a new of cause of action.

5. On the contrary learned counsel for the petitioner submitted that the

persons whom he wants to implead as a party to that case are necessary party

and moreover plot no. 572 and plot no. 103 /1054 are similar plot and as such

if the same are being incorporated it will not create new cause of action, rather

such amendment is required for effective adjudication of real controversy

between the parties, fully and effectively.

6. Perused material available in the record and in view of the facts and

circumstances of the case, C.O. 2841 of 2014 is hereby disposed of with

observation that the proposed amendment as sought for by the plaintiff is

allowed not in part but in full, keeping the question of non-joinder and mis-

joinder of parties and also non-joinder and mis-joinder of the properties open

for being decided by the learned Trial Court after framing proper issue on that

point.

C.O. 2841 of 2014 is disposed of accordingly without any order as to

costs.

Trial Court will be at liberty to proceed with the suit on the basis of

server copy of this order.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)