Calcutta High Court (Appellete Side)
Shyamal Kanti Dutta vs Smt. Shefali Dutta And Another on 19 July, 2021
AD. 14.
July 19, 2021.
MNS.
C. O. No. 907 of 2021
(Via video conference)
Shyamal Kanti Dutta
Vs.
Smt. Shefali Dutta and another
Ms. Deblina Lahiri
... for the petitioner.
Mr. Pinaki Ranjan Mitra
...for the opposite parties.
Affidavit-of-service filed in Court today be
taken on record.
Heard both parties.
Learned counsel appearing for the
petitioner contends that that compass of the
revisional application is short.
The first limb of her argument is that the
facts sought to be incorporated by way of an
amendment by the petitioner was intended to
introduce only relevant facts, being the pendency
of certain prior litigations and the rectification of a
date of a document mentioned erroneously in the
original plaint.
Learned counsel further submits, by
placing reliance on the Division Bench judgement
of Sree Sree Iswar Radha Behari Jew
represented by Basudeb Das Vs. Malati P.
Soni, reported at AIR 2019 Calcutta 131,
wherein a reference on the question, whether, in
view of Vidyabai V. Padmalatha [(2009) 2 SCC
409], 'commencement of trial', as envisaged in
the proviso to Order VI, Rule 17 of the Code of
Civil Procedure, would mean the date of first
hearing, that is the date of framing of issues, or
the final hearing of the suit, examination of
witnesses, filing of documents and addressing of
arguments. The answer to such question, given
by the Division Bench, was that the expression
"commencement of trial" in the proviso to Order
VI, Rule 17 of the Code of Civil Procedure would
imply the date when the court first applies its
mind after the affidavit of evidence is filed and
when the first witness proves his affidavit of
evidence or such witness seeks to prove a
document for it to be tendered in evidence or the
cross-examination of such witness begins,
whichever is earlier.
Learned counsel appearing for the
defendants/opposite parties, on the other hand,
contends that, in any event, the facts sought to be
introduced by way of amendment were known to
the plaintiff/petitioner before the filing of the suit.
Hence, the belated filing of the amendment
application could not have been allowed as a
matter of course and rightly rejected by the trial
court.
Upon going through the cited judgment
and the argument of counsel, a perusal of the trial
court's order, which is impugned herein, makes it
evident that the trial court relied merely on the
proviso to Order VI Rule 17 of the Code of Civil
Procedure, whereas only the issues had been
framed in the suit and the final hearing had not
yet started. In the process, the ratio laid down in
the cited Division Bench judgment was entirely
overlooked.
Moreover, the proposed amendments are
innocuous in nature and cannot change the
complexion or nature and character of the suit at
all. Particularly, keeping in view the date of filing
of the amendment petition at a nascent stage of
the suit, the court ought to adopt a liberal
approach, as per settled law, in allowing such
amendments. Thus, on both scores, the
impugned order ought to be set aside.
Accordingly, C. O. No. 907 of 2021 is
allowed on contest, thereby setting aside the
impugned order, bearing order no. 13 dated
March 17, 2021 passed by the Civil Judge(Senior
Division), Third Court at Barasat, District - North
24 Parganas, in Title Suit No. 468 of 2019.
There will be no order as to costs.
Urgent photostat certified copies of this
order, if applied for, be made available to the
parties upon compliance with the requisite
formalities.
(Sabyasachi Bhattacharyya, J.)
