Sri Haradhan Samanta vs Sudarsan Maity & Ors
2023 Latest Caselaw 1480 Cal

S/L 8
28.02.2023

Court No.652 SD CO 2077 of 2021 Sri Haradhan Samanta Vs.

Sudarsan Maity & Ors.

Mr. Dyutiman Banerjee Mr. Salil Kr. Maiti Ms. Pinki Saha ... for the Petitioner.

Mr. Tapan Mahapatra Mr. Munshi Ashiq Elahi ... for the Opposite Party No.1.

Being aggrieved and dissatisfied with order dated

29.9.2021 passed by the learned Civil Judge (Junior

Division), Haldia, Purba Medinipur in Title Suit No.32 of

2008, present revisional application has been preferred.

By the impugned order the learned court below was

pleased to reject the plaintiff's prayer for amendment of

plaint filed under Order VI Rule 17 of the Code of Civil

Procedure. The petitioner contended that the petitioner as

plaintiff filed the aforesaid suit for declaration that the deed

in question is loan in substance and not an out and out

agreement for sale, against the opposite parties.

The case made out by the plaintiff in the plaint is that

father of the petitioner, namely, Adhar Chandra Samanta

obtained loan from the defendant no.1 who is a money

lender and used to lend money on the basis of the mortgage.

Accordingly, the predecessor of the petitioner due to

financial hardship, obtained a loan after executing a deed in

favour of the said defendant no.1. Subsequently, when the

plaintiff requested the defendant no.1 to reconveyance the

property after repayment of the loan amount, the defendant

no.1 refused to do the same. Accordingly, the said suit was

filed and opposite party no.1 contested the said suit by filing

written statement, denying all material allegations. In

connection with the said suit, the plaintiff filed an

application under Order VI Rule 17 of the Code of Civil

Procedure praying for amendment of the plaint contending

that plaintiff was unaware of the registered deed being

no.3314, 3315 dated 13.10.2012 executed by defendant no.1

in favour of defendant nos.4 and 5. So he could not mention

the abovementioned deeds in the plaint and also could not

challenge the same. Therefore, the plaintiff filed the said

petition for amendment in order to incorporate the said fact.

Learned court below after hearing both the parties was

pleased to reject the same.

Learned counsel appearing on behalf of the petitioner

submits that the trial court acted illegally and with material

irregularity in rejecting the said application of the petitioner

holding that the subject matter of amendment application is

barred by limitation and aforesaid transaction was entered

during the pendency of the suit and learned court below also

erred in holding that the proposed amendment, if allowed, it

will change the nature and character of the suit and failed to

consider the provision as laid down in Section 52 of the

Transfer of Property Act.

Petitioner in this context has relied upon judgments

in the case of Prem Singh and Ors. vs. Birbal and Ors., Kewal

Krishan vs. Rajesh Kumar and Ors. and Meharchand Das vs.

Lal Babu Siddique and Ors.

Learned counsel appearing on behalf of the

defendant/opposite party submits that he does not have any

objection in respect of prayer for amendment mentioned in

item no.1, 2 and 4 of the schedule of amendment application

but he has strong objection against the prayer for

amendment as proposed in item no.3 of the schedule of the

amendment petition.

I have perused the order passed by the learned court

below wherein learned court below has specifically observed

that the plaintiff impleaded defendant no.4 and 5 as party to

this suit by way of petition under Order 1 Rule 10(2) of the

Code dated 01.3.2013. The plaintiff specifically pleaded in

that application that he came to know about the registered

deeds dated 13.10.2012 and for which he has made the said

application. Accordingly, it is admitted position that the

plaintiff had knowledge about the aforesaid two deeds being

no.3314 and 3315 in favour of defendant no.4 and 5 at least

on 01.3.2013, the date on which the plaintiff filed the

aforesaid application under Order 1 Rule 10(2). Accordingly

the plaintiff has no right to challenge the said deeds after

lapse of so many years.

In this context, learned counsel appearing on behalf

of the petitioner submits that by way of amendment, he is

not seeking to incorporate any prayer for declaration that the

said deeds are void and as such, the question of limitation

does not arise in the present case as by way of amendment

he only wants to incorporate that the said deeds are illegal,

void and the defendant no.1 had no authority to execute the

said deeds and the said deeds were never read over and

explained to the vendors nor any consideration was passed

at the time of execution of those deeds.

When it is admitted position that the

plaintiff/petitioner has lost his right to pray for a declaration

that the said deeds are void in view of the provisions of the

Limitation Act, such averments as made in item no. 3 of the

schedule of amendment petition has also become redundant

in view of the said fact.

Furthermore, on perusal of the prayer of the plaint, it

appears to me that the main controversy between the parties

in the suit is in respect of the transaction as to whether the

deed in question in favour of defendant no.1 is loan in

substance or it is an out and out agreement of sale deed. It

appears to me that in order to adjudicate said controversy in

the said suit, the proposed amendment as made in item no.3

of the schedule of amendment application is not at all

necessary. Only such portion of amendment needs to be

incorporated which are necessary for complete adjudication

of the suit. Here in item no. (3), the proposed amendment as

sought for is not imperative for proper and effective

adjudication of the suit and on the contrary proposed amend

if allowed, may cause prejudice to the opposite parties, who

might have acquired valuable right due to lapse of time.

Accordingly, I find nothing to allow the said proposed

amendment mentioned in item no.3 of the schedule of

amendment application.

In view of the above, plaint is amended in terms of

item no.1, 2 and 4 of the schedule of amendment application

and plaintiff is to file amended plaint accordingly. However,

petitioner's prayer for amendment in respect of item no.3 of

the schedule of amendment application is refused.

Accordingly, CO 2077 of 2021 is disposed of.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

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

necessary formalities.

(Ajoy Kumar Mukherjee, J.)