Smt. Chitra Sengupta vs Smt. Bina Saha & Anr
2023 Latest Caselaw 4555 Cal

31.07.2023

Item No.120 CP C.O. 1447 of 2023 Smt. Chitra Sengupta Vs.

Smt. Bina Saha & anr

Mr. Dibyajyoti Raha Mr. Pritam Mukherjee ...for the Petitioner.

This revisional application has been filed

challenging an order dated April 18, 2023, passed by

the learned Civil Judge (Junior Division), 1st Court at

Alipore in Title Suit No. 3292 of 2010.

By the order impugned, the learned court

below allowed an application for amendment filed by

the plaintiff to incorporate subsequent events. The

learned court found that the factum of transfer of

the undivided share of the defendant No.2 in favour

of the plaintiff by a registered deed dated September

12, 2019 was a subsequent event and ought to have

been incorporated in the suit for complete

adjudication of the controversy between the parties

and to prevent multiplicity of proceedings. The

learned court below discussed all the relevant

decisions of the Hon'ble Apex Court in this regard

and came to the conclusion that a liberal approach

should be adopted.

The opposite party was compensated with cost,

for the delay.

Considering the nature of the amendment, this

court is of the view that the amendment was not

barred by law. The amendment would prevent

multiplicity of proceedings and was necessary for

complete adjudication of the dispute between the

parties.

In the decision of Life Insurance Corporation

of India vs Sanjeev Builders Private Limited &

Anr. decided in Civil Appeal No. 5909 of 2022, the

Hon'ble Apex Court laid down the principles

governing amendment in paragraph 70 of the

decision. The relevant portion is quoted below:-

(ii) All amendments are to be allowed which are necessary for determining of the real question in controversy provided it does not cause injustice or prejudice to the other side. This is mandatory, as is apparent from the use of the word "shall", in the latter part of Order VI Rule 17 of the CPC.

(iii) The prayer for amendment is to be

allowed:-

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs."

The decision of the Hon'ble Apex Court in the matter

of Revajeetu Builders & Developers vs.

Narayanswamy & Sons, reported in (2009) 10 SCC

84 : [2015 (4) ICC (S.C) 127] is referred to. The

basic principles for grant or refusal of amendment

articulated almost 125 years ago were still

considered to be correct statement of law and our

courts have been following the basic principles laid

down in those cases. It would be relevant here to

refer to the judgment of Revajeetu Builders (supra)

where the Apex Court had not only traced the history

of the provision but also after examining the English

and Indian precedents laid down the following

guiding principles when dealing with the application

under Order VI Rule 17:-

     "FACTORS        TO         BE     TAKEN      INTO
     CONSIDERATION          WHILE     DEALING     WITH
     APPLICATIONS FOR AMENDMENTS:

63. 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.

These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive."

This court does not find any illegality in the

order impugned. Cost has also been awarded in

favour of the opposite party no. 1. The decision

passed in Surjit Singh & ors. Vs. Harbans Singh &

ors., reported in AIR 1996 SC 135, is not applicable

at this stage. Merits of the statements sought to be

incorporated by way of an amendment, are not to be

looked into by the court at the stage of deciding

whether the amendment should be allowed or not.

The decision in Surgit singh(Supra), touches the

merits of the amendment which shall be decided at

the trial.

In the decision of Rajesh Kumar Aggarwal

and others vs. K.K.Modi and others reported in

AIR 2006 SC 1647, the Apex Court held that the

Court was not to go into the merits. The relevant

portion is quoted below:-

"While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment."

All statements incorporated can be

controverted in the additional written statement.

The learned advocate for the petitioner submits

that challenging the aforementioned sale, a suit has

already been filed. The petitioner is always at liberty

to approach the appropriate court, praying for

analogous hearing of the suits, if permissible in law.

The revisional application is accordingly

disposed of.

The plaintiffs will file the amended plaint

within four weeks from date, if not already filed. The

additional written statement shall be filed within four

weeks thereafter.

There shall be no order as to costs.

Parties are to act on the server copy of this

order.

(Shampa Sarkar, J.)