Ajit Dey & Ors vs Swapan Kumar Nath & Ors
2022 Latest Caselaw 6663 Cal

16.9.2022

Ct. no. 652 sb C.O. 1315 of 2020

Ajit Dey & Ors.

Vs.

Swapan Kumar Nath & Ors.

                   Mr. Soumitra Bandyopadhyay
                   Ms. Suchana Banerjee       ...for the petitioners

                   Ms. Madhumita Patra
                   Mr. P. Das                   ....for the opposite party



                    Being    aggrieved   and     dissatisfied   with   the

impugned order no. 24 dated 28.1.2020 passed by the

learned Additional District Judge, 2nd Court, Hooghly at

Chinsurah in title appeal no. 64 of 2016, the present

application has been preferred.

The petitioners contended that the opposite party

nos. 1 to 6 as plaintiffs filed a suit for declaration and

injunction against the petitioners in the court of learned

Civil Judge, (Junior Division), 1st Court, Hooghly at

Chinsurah being title suit no. 250 of 1997 which was

subsequently transferred to learned Civil Judge (Junior

Division), Additional Court and are treated as title suit

no. 69 of 2003. In the said title suit, the petitioners have

been impleaded as defendants along with opposite party

nos. 7 to 11. In the said suit, the opposite party as

plaintiff prayed for declaration that B schedule property

measuring .005 acres in RS Dag no. 7472 belongs to

plaintiffs and the defendant nos. 1 and 2 have no right

title interest in the property and also prayed for

permanent injunction. The petitioners herein as

defendants contested the said suit by filing written

statement denying all the allegations. During pendency

of the suit, survey commission was held over the suit

property at the instance of the plaintiffs/opposite parties

and the learned advocate commissioner filed report and

plaintiffs/opposite parties accepted the said report and

never objected to the same. After completion of evidence

adduced on behalf of both the parties and after hearing

argument, learned Civil Judge (junior Division),

Additional court, was pleased to dismiss the said title

suit on 13th June, 2016.

Being aggrieved and dissatisfied with the aforesaid

judgment of dismissal the plaintiffs/opposite parties

preferred the title appeal before the learned Additional

District Judge, 2nd Court, Hooghly at Chinsurah. During

pendency of the said appeal, plaintiff/ opposite party

nos. 1 to 6 as appellants filed an application under Order

VI rule 17 read with Section 151 of the Code of Civil

Procedure before the learned appellate court and learned

appellate court allowed the said amendment petition

ignoring the fact that the suit has already disposed of by

the aforesaid judgment and decree of the trial court

dated 13.6.2016.

Learned advocate for the petitioners submits that

the order allowing the amendment petition is bad in law

and not maintainable. The plaintiffs/opposite parties

have not stated any reason for filing the said amendment

petition at this belated stage and practically by way of

amendment they are trying to bring a new fact or case

and also thereby trying to change the nature and

character of the suit. Plaintiffs/opposite parties have

also not stated as to why the amendment is necessary at

this belated stage.

He further submits that learned appellate court did

not at all consider the written objection filed by the

petitioner/defendants passed the impugned order no. 24

dated 28.1.2020 ignoring the provision of law that no

application for amendment shall be allowed after

commencement of the trial, unless the court comes to

the conclusion that in spite of due diligence the parties

could not have raised the matter before commencement

of trial. In the instant case, the plaintiffs/opposite

parties have not raised the matter before the trial court

and after delivery of judgment, at this appellate stage,

they have come up with this amendment application.

Learned advocate for the opposite party submits

that the proposed amendment if allowed, will not change

the nature or character of the suit since the description

of the B schedule already in the plaint is sought to made

elaborate by way of amendment. The proposed

amendment is very much necessary for the purpose of

effective and conclusive adjudication of the suit and if it

is not allowed it will cause prejudice to the interest of

the plaintiffs/opposite parties.

I have heard the contentions of both the parties. It

appears from the amended plaint filed by the

plaintiffs/opposite parties before the trial court on 23rd

July, 2004 that plaintiffs/opposite parties in that suit

prayed that the B schedule property measuring .005

acres in RS Dag no. 7472 belongs to the plaintiffs being

part and parcel of RS Dag no. 7427 and not RS dag no.

7433 and that the defendant no. 1 and 2 have no right

title interest in the property. In the said amended plaint,

B schedule property has been described as being part of

A schedule which is demarcated and measuring .005

acres of RS. Dag no. 7472.

Now it appears from the amendment application

which is filed before the appellate court in title appeal

no. 64 of 2016 from the schedule that after paragraph 3

by incorporating paragraph 3A in the plaint, the plaintiff

wants to incorporate the periphery of the property and to

describe how they have become owner of the property

which is mentioned in item no. 1 and in item no. 2 by

way of amending paragraph 12, they want to incorporate

that the plaintiff is an absolute owner of the property

purchased through sale deed no. 854 of 1989.

Learned First appellate court allowed the said

amendment with the observation that for proper

adjudication of the case, amendment is required to be

allowed and he further observed that on going through

the proposed amendment, it appears that appellant

wants to incorporate said fact which have already been

stated in the plaint but he wants to give detailed reason

for non-mentioning of any plot no. in the schedule

property purchased by predecessor of the plaintiff/

appellant and he only wants to elaborate the periphery of

the property.

It also appears that first appellate court has given

liberty to the defendants to file additional written

statements.

Having considered the facts and circumstance of

the case, I am also of the view that by way of amendment

the plaintiff has not tried to make out any amendment

which may cause prejudice to the other party or which

can take away any right accrued to the

petitioner/defendants. On the contrary, the trial court

rightly held that for effective and conclusive adjudication

of the case, proposed amendment is necessary.

In view of the above, C.O. 1315 of 2020 is

dismissed. However, such dismissal order will not

preclude the defendant to file additional written

statement if any nor such dismissal order will preclude

parties to adduce additional evidence, if any, under the

provision of order 41, rule 27 of the Civil Procedure

Code, before the appellate court. learned trial court shall

made every endeavour to dispose of the appeal as

expeditiously as possible preferably within a period of

one year from the date of the communication of the

order.

Urgent Photostat certified copy of this order, duly

applied for, be given to the parties upon compliance of all

requisite formalities.

(Ajoy Kumar Mukherjee, J.)