Kenaram Mondal vs Kashem Ali Mollah & Ors
2023 Latest Caselaw 4012 Cal

3.7.2023
    96
Ct. no. 652
    sb
                                   CO 1523 of 2018


                                Kenaram Mondal
                                     Vs.
                              Kashem Ali Mollah & ors.


                    Mr. Asit Kumar Bhattacharya
                    Ms. Mousumi Biswas          ...for the Petitioner



                    Affidavit of service filed by the petitioner is taken on

              record. In spite of service, opposite parties are not

              represented.

                    Being aggrieved by the order dated 12.4.2018

              passed by the learned Civil Judge, Junior Division, 2nd

              Court, Baruipur, South 24 parganas in Title Suit no. 277

              of 2015, present application under Article 227 of the

              Constitution of India has been preferred.

                    The petitioner contended that the petitioner as

              plaintiff filed aforesaid suit, inter alia for declaration,

              damages        and     permanent        injunction.       The

              plaintiff/petitioner also filed an application for ad interim

              order of injunction and learned court below, by the

              impugned order dated 15th December, 2015, was pleased

              to direct both the parties to maintain status quo as

              regards the nature and character of the suit property. The

              petitioner filed an application under Order VI rule 17 of

              the Code, for amendment of the plaint and learned court
                      2




below, by the impugned order, after hearing the plaintiff's

amendment application was pleased to reject the same.

        Learned counsel for the petitioner submits that the

learned court below acted illegally and with material

irregularity in rejecting the application for amendment of

plaint on the ground that if there be any violation of the

order of status quo, the plaintiff's liberty is to file

application under Order XXXIX Rule 2A of the Code and

such statement is not required to be incorporated by way

of amendment. Learned court below acted illegally and

with material irregularity in observing that the norms of

amendment of plaint carries with certain aspect of

strictness and he did not consider at all materials on

record. In fact, learned court below failed to exercise his

jurisdiction by not following the well-accepted principle

laid down in connection with prayer for amendment and

he ought to have allowed such prayer made by the

petitioner. Accordingly, the petitioner has prayed for

setting aside the impugned order.

        Perused the schedule of amendment as well as the

order    impugned.        On   perusal   of   the    schedule      of

amendment, it appears that the plaintiff wants to

incorporate    that      during   pendency    of     the   suit    on

16.1.2016

, the defendants violating the order of

injunction has constructed well-privy (kuo paykhana) and

as such the plaintiff by incorporating a prayer in the

plaint, wants for demolition of the said privy and also

wants to incorporate prayer for recovery of possession of

the said portion of the land from the defendants and

accordingly, the plaintiff wants to insert a new schedule

under the heading "schedule Kha". Learned court below

after considering the submissions, came to the conclusion

that the allegations of encroachment has not been prima

facie established before the court and local inspection or

local investigation has also not been made and as such

learned court below was pleased to reject the said

application.

The order impugned passed by the learned court

below is perverse since it violated the basic principles of

dealing with an application for amendment. Settled

principle of law has been enunciated by the Hon'ble Apex

court in the case of Revajeetu Builders and Developers

vs. Narayanaswami and sons & others reported in

(2009) 10 SCC 84. Paragraph 67 of the judgment runs as

follows"-

"67. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment.

(1) Whether the amendment sought is imperative for proper and effective adjudication of the case?

(2) Whether the application for amendment is bona fide or mala fide?

(3) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) Refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? and

(6) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application."

Accordingly, the basis test which should govern the

court's discretion in grant or refusal of the amendment is

whether such amendment is necessary for the

determination of the real question in controversy subject

to the condition that it would not cause prejudice or

injustice to the other side which cannot be compensated

by costs. In the instant case what sought to be

incorporated by way of amendment is a subsequent

event. Such amendment involving question of

encroachment and/or recovery of possession unless

incorporated by way of amendment, the real controversy

between the parties will not be adjudicated effectively and

conclusively. At the stage of deciding prayer for

amendment, court should not go into correctness or

falsify of the case of amendment, that is to say whether

plaintiff's contention of encroachment by defendant in

respect of suit property is true or false. He is also not

supposed to consider merits of amendment at the stage of

considering prayer for amendment and while dealing with

such application, court should also take notice of

subsequent events to shorten the litigation, to preserve

and safeguard, the rights of both parties and to sub-serve

the ends of justice. It is to be kept in mind that dominant

purpose of allowing amendment is to minimise litigation.

Moreover, nothing mala fide is found in the prayer which

can justify trial court decision.

In view of the facts and circumstances of the case,

the learned court below ought to have considered whether

the proposed amendment is required for adjudication of

the real controversy between the parties or not. Since the

averments made in the proposed amendment is required

for the purpose of final adjudication of the suit, learned

court below was not at all justified in rejecting the said

application and he ought to have allowed the said petition

for amendment. Prayer for amendment does not depend

upon the fact as to whether, the plaintiff will ultimately

able to succeed in proving his case or not.

In view of above, the order impugned dated

12.4.2018 is hereby set aside. The plaint is accordingly

amended as per schedule of the petition. The plaintiff is

directed to file amended plaint within a period of four

weeks from the date of communication of the order before

the court below. Since the suit is pending for a

considerable period of time, learned court below is

directed to expedite the final hearing of the suit.

C.O. 1523 of 2018 is accordingly allowed.

Urgent photostat certified copy of the order, if

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

requisite formalities.

(Ajoy Kumar Mukherjee, J.)