C&Cr vs Sri Belu Bouri & Ors
2023 Latest Caselaw 2289 Cal

04.04.2023 Item No.137

Aloke IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Appellate Side C.O. 3667 of 2022 Sri Banshi Dey & Anr.

C&CR

Vs.

Sri Belu Bouri & Ors.

Mr. Arijit Bardhan Mr. Saibal Krishna Dasgupta ... for the petitioners/plaintiffs

This revisional application has been

filed by the plaintiffs/petitioners under Article

227 of the Constitution of India challenging

order dated 3rd November, 2022 passed by

learned Civil Judge (Junior Division),

Ragunathpur, District-Purulia, in Title Suit No.

39 of 2012 rejecting the prayer of the plaintiffs

for amendment of plaint under Order VI Rule

17 of the Civil Procedure Code.

The brief fact of the case is that the

plaintiffs/petitioners filed a suit for declaration

and injunction contending inter alia that the

deed of sale being no. 997 dated 16th March,

1993 mentions wrong schedule of the property

conveyed. On 29th January, 2016, the suit was

dismissed by the trial court against the

defendant nos. 1 and 3 ex parte and on contest

against defendant no. 2 on the ground of non-

maintainability. Such order of dismissal was

assailed in appeal being Title Appeal No. 26 of

2018 wherein the suit was sent back on

remand with a direction upon the trial court to

pass judgment afresh giving opportunity to the

parties to adduce evidence both oral and

documentary. After such remand the plaintiffs

filed application under Order VI Rule 17 of the

Civil Procedure Code for amendment of the

plaint to the extent for incorporation of prayer

for rectification of the property conveyed in the

sale deed. Such application for amendment of

the plaintiffs/petitioners was rejected by the

learned trial court. Hence, this revision.

Mr. Arijit Bardhan, learned advocate

for the plaintiffs/petitioners, at the outset,

submits that it is the specific case of the

plaintiffs/petitioners that at the time of

execution of the deed of sale in question the

specification of property has been wrongly

quoted therein and the prayer for amendment

squarely relates to rectification of such a

mistake. Further the amendment sought for will

not change the nature and character of the suit.

Referring to Section 26 of the Specific Relief Act,

he submits that as per the provision the duty is

also cast upon the court to rectify the deed

where primarily it appears to have been a

mistake in execution of such a deed. He further

indicates that the trial court has observed that

since there is commencement of trial of the

suit, hence, as per the amended provision of the

Civil Procedure Code there cannot be any

amendment unless and until the court comes to

the conclusion that in spite of due diligence

such amendment could not have been raised.

Relying on a decision of Hon'ble Supreme Court

in Baldev Singh & Ors. vs. Manohar Singh &

Anr. reported in (2006) 6 SCC 498 he submits

that the commencement of trial pertains to

taking of evidence and filing of documents,

however, in the instant case although the date

for peremptory hearing has been fixed but the

evidence has not commenced at the stage of

disposing the application under Order VI Rule

17 of the Code. In light of his aforesaid

submissions, he prays for stay all further

proceedings in Title Suit No. 39 of 2012.

From the plaint of the

petitioners/plaintiffs annexed to the revisional

application it is found that the plaintiffs have

categorically pleaded that there is mistake at

the end of the deed writer while incorporating

the RS Plot Numbers in the sale deed in

question, however, the classification of

boundary of the plots have been correctly

mentioned. Precisely the suit have been

initiated to remove such mistake and wrong

recording of the property conveyed by sale deed

being no.997 in the year 1993. The plaintiffs

have taken out the application for amendment

for incorporation prayer for rectification of

property conveyed by the sale deed.

Upon considering of the submissions

advanced on behalf of the petitioners/plaintiffs

and bearing in mind the facts involved, I find

that an arguable issue has been raised by the

plaintiffs/petitioners in the present revisional

application.

Accordingly, there shall be stay of all

further proceedings in Title Suit No. 39 of 2012

pending before the learned Civil Judge (Junior

Division), Ragunathpur, District-Purulia, for a

period of four weeks or until further orders

whichever is earlier.

Petitioners/plaintiffs are directed to

serve copy of this application upon the opposite

parties as well as their learned advocates

appearing in the court below through registered

speed post with acknowledgment due and file

affidavit-of-service on the returnable date.

Let the matter appear on 4th May,

2023 under the heading "Extension of Interim

Order".

(Bivas Pattanayak, J.)