Sudarshan Das vs Kamalendu Mondal & Ors
2022 Latest Caselaw 6479 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      CIVIL REVISIONAL JURISDICTION
                              APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                               CO 1576 of 2018
                                    With
                               CAN 6101 of 2019

                               Sudarshan Das
                                     Vs.
                           Kamalendu Mondal & Ors.

For the Petitioner             :      Mr Kushal Chatterjee
                                      Mr. Debrup Choudhury

For the O.P. nos. 5 to 9       :      Mr. Arijit Bardhan
                               :      Mr. Anirban Ghosh
                               :      Ms. Tapati Samanta


Heard on                       :      07.09.2022

Judgment on                    :      12.09.2022



Ajoy Kumar Mukherjee, J.

1. This is an application under section 227 of the Constitution of India

against order No. 11 dated 17.04.2017 passed by learned Civil Judge Junior

Division, 1st Court, Uluberia, in Title Suit No. 643 of 2015.

2. Petitioner as plaintiff had filed a suit against opposite parties wherein

petitioner had prayed for right title interest over 'A' schedule property and had

further prayed for a decree for rectification of the deed of sale , registered on

14.08.1996 and also for injunction restraining defendants no. 1 to 4 from

alienating 2/3 share out of the 'A' schedule property, being Title Suit no 643 of

2015 which is now pending before learned Civil Judge (Junior Division) 1 st

Court Uluberia. In the said suit petitioner had filed an application for

amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure

(CPC) and the said application for amendment was taken up for hearing by the

Ld. Trial Judge and after hearing the parties, the learned Trial Judge by the

impugned order, rejected the said application for amendment.

3. Mr. Kushal Chatterjee appearing on behalf of the petitioner submits that

learned Trial judge has failed to appreciate that amendment as sought for, if

allowed, will not change the nature and character of the suit. Learned Trial

judge had erred in holding that plaintiff is intending to include new facts and

events arising out of cause of action which is beyond the scope of the suit.

4. Supporting the impugned order Mr. Arijit Bardhan appearing on behalf of

the opposite party No. 5 to 9 contended that trial court has rightly refused to

amend the plaint as per the schedule of the petition as the proposed

amendment, if allowed, will change the basic nature and character of the suit

and as such the revisional application is liable to be dismissed.

5. On perusal of petition for amendment of plaint filed by plaintiff dated

20.01.2017, it appears that plaintiff has contended that from the written

statement filed by defendant no. 5 to 9 it transpires that they have purchased

'A' schedule property through two register deeds, one from defendant no. 1 to 3

and another from defendant no. 4 by deeds dated 09.12.2015 and on

20.06.2018 respectively. It has further been stated in the amendment

application that plaintiff anticipated that the defendant no. 1 to 4 might

execute and register deed in favour of defendant no. 5 to rest and it has

appeared to be true when the said transfer in respect of 'A' schedule, during

pendency of the suit has been disclosed in written statement. Therefore,

challenging the propriety of execution of deed by defendant no. 1 to 4 as well

as for introducing further facts ancillary to such transfer, they had prayed for

amendment.

6. It appears from written objection filed by defendant no. 5 to 9 against

prayer for amendment that answering defendants contended that the

amendment application, if allowed, will change the character of the instant suit

from a suit for rectification of plaintiff's own deed to a suit for cancellation of

deed.

7. It is not in dispute that the impugned transfer by defendant No. 1 to 4

in connection with 'A' Schedule property in favour of opposite parties occurred

subsequent to the institution of the instant suit. Opposite party's contention

that the prayer for cancellation of the said deeds in this suits is premature as

plaintiff has not yet obtained relief as sought for and that he can pray for

cancellation of deeds by filing separate suit only after obtaining relief in this

suit, is not sustainable in the eye of law.

8. The dominant purpose of allowing an amendment is to minimize the

litigation. The relevant words in rule 17 are "alter", "amend" and

"amendments". There is no express prohibition in order VI, rule 17 that

conversion of a suit of one character into a suit of another character or

inconsistent character provided it is necessary for the purpose of determining

the real question in controversy between the parties. Once it is found that

proposed amendment has reasonable and substantial nexus with the matter

in issue between the parties , it must hold the amendment to be necessary for

the purpose of determining the real question in controversy between the

parties. On perusal of plaint it appears that aforesaid sale by defendant no. 1

to 4 has reasonable and substantial nexus with the matter in issue that is

plaintiff's prayer for rectification of deed. Question of limitation also involves

unless plaintiff incorporate prayer for cancellation of deed in time. Accordingly

an amendment of plaint even be allowed when it changes the nature and

character of the suit to avoid multiplicity of the suits and for the purpose of

determining the real question in controversy between the parties. In the

present context there is no scope to say that proposed amendment , if allowed

will cause injustice to defendant. In this context the observation made by the

Trial Court that by way of amendment plaintiff is intending to include entirely

new facts and events arising out of cause of action which is beyond the scope

of instant suit is perverse and prejudicial to the interest of the parties.

9. Having considered the aforesaid facts and circumstances of the case the

impugned order dated 17.04.2017 passed by learned Civil Judge (Junior

Division) 1st Court, Uluberia is hereby set aside. Plaintiffs application for

amendment of plaint under order VI Rule 17 CPC dated 20.01.2017 is

accordingly allowed. Trial Court is directed to amend the plaint as per schedule

of said amendment petition dated 20.01.2017 and after incorporating aforesaid

amendment in the plaint to proceed with the suit in accordance with law.

10. C.O. 1576 of 2018 is thus allowed.

However there will be no order as to costs.

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.)