& Ors vs Sri Bhim Charan Dutta & Ors
2022 Latest Caselaw 718 Cal

   21
 sandip
 Ct. 18
21.02.2022

C.O. No. 2360 of 2019 IA No : CAN 1 of 2021 (Via Video Conference)

Smt. Renuka Bala Mondal, since deceased, her heirs and legal representatives Sri Ujjwal Mondal & Ors.

Vs.

Sri Bhim Charan Dutta & Ors.

Mr. Sanjay Mukherjee, Mr. Dhananjoy Nayak ... For the petitioners.

Mr. Amitabha Karmakar, Mr. Gautam Banerjee ... For the opposite party no. 7.

Affidavit-of-service filed on behalf of the petitioner

be kept with the record.

The revisional application under Article 227 of the

Constitution of India is directed against the order

dated May 30, 2019 passed by the learned District

Judge, Purba Medinipur in Title Appeal No. 08 of

2016.

The predecessor-in-interest of the present

substituted petitioners, namely Renuka Bala Mondal

along with one Sudhir Chandra Dutta @ Chowdhury

(since deceased) filed Title Suit No. 99 of 1979

subsequently re-numbered as Title Suit No. 30 of

1990, inter alia, for a decree of declaration of right,

title, interest over the suit property.

The learned Trial Judge by the judgment and

decree dated September 16, 2015 dismissed the said

suit on the ground that the name of the plaintiff no. 2

said Sudhir Chandra Dutta @ Chowdhury on his

death although has been expunged from the cause-

title of the suit but averments concerning the said

deceased plaintiff in the plaint since has not been

expunged, the suit is not maintainable.

The plaintiffs aggrieved by the said judgment and

decree have preferred the connected Title Appeal.

In the appeal the appellant, the deceased Renuka

Bala Mondal, to remove the said defects, took out an

application seeking amendment of the plaint. The

appeal Court below by the order impugned has

dismissed the said application holding that the

appellant has failed to explain the reason for not

approaching the Court for such amendment before

commencement of trial.

The death of the plaintiff no. 2 happened

subsequent to the commencement of the trial and in

view of the nature of the amendment sought for the

order impugned is not sustainable and is accordingly

set aside.

The application filed by the petitioners seeking

amendment of the plaint is allowed. The substituted

appellants are permitted to file amended plaint within

two weeks from date. The defendants are entitled to

file their additional written statements within two

weeks from the service of copy of the amended plaint

upon them. The appeal Court below is requested to

expedite the disposal of the appeal in accordance with

law.

C.O. 2360 of 2019 is disposed of with the above

terms without any order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be supplied to the parties subject to

compliance with all requisite formalities.

(Biswajit Basu, J.)