Shrimati Archana Das & Anr vs Subrata Dawn & Ors
2021 Latest Caselaw 4511 Cal

In the High Court at Calcutta Civil Revisional Jurisdication Appellate Side

Present:-

The Hon'ble Justice Subhasis Dasgupta.

CO. No. 935 of 2021

Shrimati Archana Das & Anr.

Vs.

Subrata Dawn & Ors.

For the Petitioners/Plaintiffs : Mr. R. N. Mahato, Adv.

Mr. Aritra Shankar Ray, Adv.

For the Defendents/ : Mr. Probal Kumar Mukherjee, Sr. Adv.

Opposite Parties                   Mr. Tarak Nath Halder, Adv.

Heard On                         : 31.08.2021.

Judgment                         : 06.09.2021.



Subhasis Dasgupta, J:-

This revisional application being C.O. 935 of 2021 is directed

against the order dated 23rd February, 2021, passed in Title Suit No. 157

of 2007, by learned Civil Judge (Senior Division) at Sealdah rejecting the

amendment petition, filed by the petitioners/plaintiffs, is the subject of

challenge in this revisional application.

Mr. Mahato, representing the petitioners/plaintiffs, adverting to

Para-4 of instant revisional application submitted that necessity for filing

amendment application by the plaintiffs arose after the prayer for the

amendment of written statement, filed by defendant no. 2, had been

rejected by the Hon'ble High Court in C.O. No. 3113 of 2019.

Mr. Mahato, took me to travel to Para-7 of the amendment

application filed by the plaintiffs in T.S. 157 of 2007, wherefrom it appears

that plaintiffs derived their knowledge of other properties of their

predecessor-in-interest, and the defendant no. 2 also derived his

respective knowledge of some other properties, which were established by

the defendants from earning of properties and/or family business of

plaintiffs and defendant nos. 1 & 2, and entire effort of proposed

amendment was to bring those properties in the hotchpot for desired

relief of partition.

Mr. Mahato, was very vocal in his submission that in spite of due

diligence, the party proposing amendment could not have raised the

matter before commencement of the trial, and as such the amendment

should be allowed for the entire properties of their predecessor-in-interest

to be incorporated in the hotchpot for the proposed partition pending

between the parties.

Accordingly, Mr. Mahato submitted that the proviso appended to

Order VI Rule 17 C.P.C. will not come in the way for raising objection to

the proposed amendment.

The question thus raised by Mr. Mahato is that learned court below

had acted with material irregularity in rejecting the prayer for amendment

without truly appreciating the proviso contained in Order VI Rule 17

C.P.C., that the petitioner in spite of due diligence could not have raised

the matter before commencement of the trial.

Mr. Prabal Kumar Mukherjee, learned senior advocate representing

the opposite parties submitted that the prayer for amendment, proposed

by the plaintiffs, had been admittedly made subsequent to the rejection of

prayer for amendment application for written statement filed by the 2nd

defendant. Mr. Mukherjee further submitted that when a Coordinate

Bench of this Court in connection with C.O. No. 3113 of 2019, had

affirmed the order of rejection for amendment of written statement filed by

defendant no. 2, the same principle should be made applicable over the

facts and circumstances of this case, as in any case the plaintiffs could

not be allowed to be at a much more advantageous stage, than that of

defendant no. 2, whose prayer for amendment of written statement had

already been rejected. Incidentally, Mr. Mukherjee submitted that the

prayer for transposition of defendant no. 2 to the category of plaintiff had

also been refused.

It was at the stage of argument, defendant no. 2 sought for

amendment of written statement seeking to incorporate certain properties

for being brought to hotchpot of the present suit without the consent and

permission of the other defendants, with whom defendant no. 2 jointly

contested the suit.

The proposed amendment of written statement, at the instance of

defendant no. 2, vide C.O. No. 3113 of 2019 was in deviation of the

original defence taken by defendant no. 2 along with two other defendants.

Since the amendment of the written statement, as proposed by the

defendant no. 2 was made at a belated stage, when the suit was fixed for

argument stage, the Coordinate Bench of this Court in C.O. No. 3113 of

2019 had rejected the application for amendment of written statement.

The only point is required to be addressed by this Court is whether

the prayer for amendment, as proposed by the plaintiffs was rightly

rejected or not.

Upon perusal of the impugned order, it appears that both the

parties to this case adduced evidence each, and the suit was fixed for

argument way back in September, 2017, and even thereafter argument

was heard on several occasions. It is thus because of the pendency of this

revisional application, the logical conclusion of the suit, instituted in the

year 2007, could not be reached.

The basis of the proposed amendment is gathering of knowledge

from the application for amendment of written statement filed by

defendant no. 2, what has already been addressed in C.O. No. 3113 of

2019, holding that the proposed amendment of written statement was in

deviation of original defence taken by defendant no. 2 along with two other

defendants. The very basis of acquiring knowledge of petitioners being

violative of proviso appended to Order VI Rule 17 C.P.C., same can not be

accepted. The plea taken by the Mr. Mahato that at the relevant point of

time in spite of due diligence, plaintiffs could not have raised the matter

before the commencement of trial is accordingly without sanction of law.

Without any controversy, it may be said that the proposed

amendment is not a product of subsequent event, and the learned court

below having considered the true purport of provisions contained in

proviso appended to Order VI Rule 17 C.P.C., has rightly rejected the

amendment.

This revisonal application fails being without any merits.

Learned court below is directed to expeditiously dispose the suit

upon hearing the argument, advanced by the parties to this case, so that

the logical conclusion of the case may be reached at an early date.

The revisional application accordingly stands dismissed. The

impugned order must go unaltered.

Urgent certified copy of this order and judgment, if applied for, be

given to the appearing parties as expeditiously as possible upon

compliance with the all necessary formalities.

(Subhasis Dasgupta, J.)