Rabi Samaddarand & Anr vs Mira Roy
2023 Latest Caselaw 1989 Cal

S/L 2
24.3.2023

Court No.652 SD CO 1449 of 2020

Rabi Samaddarand & Anr.

Vs.

Mira Roy, since deceased, represented by Apurba Kanti Roy & Ors.

Mr. Sounak Bhattacharyya Mr. Abhirup Halder ... for the Petitioners.

Mr. Saptansu Basu Mr. Ayan Banerjee Ms. Debjani Sengupta ... for the Opposite Parties.

Being aggrieved and dissatisfied with the Order No.43

dated 7.9.2018 passed by the learned Additional District

Judge, 3rd Court, Alipore in Title Appeal No.330 of 2011,

present application under Article 227 of the Constitution of

India has been preferred.

The petitioners contended that the petitioners as

plaintiffs filed a suit for eviction of licensee against the

opposite party/defendant herein before the learned Civil

Judge (Junior Division), Alipore being Title Suit No.265 of

2004.

The defendant/opposite party appeared in the said

suit and contested the suit by filing written statement. The

said suit was heard extensively and it was dismissed on

contest vide judgment and decree dated August 30, 2011.

Being aggrieved and dissatisfied with the said order, the

petitioners/plaintiffs preferred aforesaid Title Appeal being

No.330 of 2011.

During pendency of the said appeal, the

petitioners/plaintiffs filed application under Order VI Rule

17 of the Code of Civil Procedure and by the proposed

amendment, the plaintiffs/appellants want to incorporate a

prayer in the plaint that the deed of conveyance dated

01.5.1965 allegedly executed by the original owner Subhas

Chandra Roy in favour of defendants/opposite parties herein

is forged, manufactured, void ab initio and not binding upon

the parties. The defendant/opposite party contested the said

application for amendment by filing written statement but

learned court below by the impugned order dated 07.9.2018

was pleased to reject the petitioners' application under Order

VI Rule 17 of the Code of Civil Procedure.

Mr. Sounak Bhattacharyya, learned counsel appearing

on behalf of the petitioners submits that the learned trial

judge passed the impugned order mechanically and without

applying judicial mind and learned court below acted

illegally with material irregularity in rejecting petitioners'

application for amendment without appreciating that the

proposed amendment is absolutely essential for deciding the

real question in controversy between the parties in the suit.

He further submits that the basic purpose of filing an

application for amendment is to minimise litigation and

while dealing with the prayer for amendment, court should

consider the prayer liberally so that all the disputes between

the parties are adjudicated effectively and conclusively.

In this context, he relied upon a judgment of South

Konkan Distilleries & Anr. vs. Prabhankar Gajanan

Naik & Ors. reported in (2008) 14 SCC 632.

Learned counsel appearing on behalf of the opposite

parties raised strong objection and contended that the

petition for amendment is not maintainable, since it is

hopelessly barred by limitation and accordingly prayed for

rejection of the present application.

I have carefully considered the submissions made by

both the parties.

It appears from plaint that the petitioners as plaintiffs

filed Title Suit No.265 of 2004 for eviction of defendant and

for recovery of khas possession from the schedule mentioned

suit property. In the said suit, plaintiffs contended that their

predecessor, Subhas Chandra Roy, since deceased, had

granted licence to the defendant which the plaintiffs have

revoked due to illegal act of the defendant and filed the

aforesaid suit. In the said suit, defendant appeared and filed

written statement. In paragraph 20 of the said written

statement, the defendant/opposite party herein have

categorically stated that by a registered deed of conveyance

dated 01.5.1965 admitted original owner Subhas Chandra

Roy sold, conveyed and transferred the suit property

measuring about 3 cottahs together with brick built asbestos

top one room standing thereon in favour of the defendant for

valuable consideration and since then the defendant has

been in physical possession in respect of the suit property by

mutating their names and by paying taxes.

Accordingly, defendant contended that in view of

above, the question of inheritance of the suit property by the

plaintiffs does not and cannot arise. The said written

statement was filed before the trial court on 25.02.2005.

Now, plaintiffs/appellants want to incorporate in the plaint

that the said deed dated 01.5.1965 is fraudulent, collusive

and not binding upon the parties by filing aforesaid

application for amendment before the appellate court on

15.6.2018.

When admittedly, it is apparent that defendant has

specifically stated in his written statement on 25.02.2005

that they have become owner of the suit property by way of

purchase and the copy of which was admittedly served upon

the plaintiffs/petitioners herein, then at least said date, i.e.,

25.02.2005 must be considered as plaintiff's date of

knowledge about defendant's purchase by the said deed.

Now prayer for declaring said deed of sale in favour of the

defendant as null and void by filing amendment petition on

15.6.2018 is hopelessly barred by limitation and present

prayer for amendment is clearly an afterthought and has

been filed at the appellate stage, which is mala fide,

worthless and not an honest prayer. Accordingly, court

below has not committed any wrong in rejecting the

plaintiffs/appellants' prayer for amendment.

In view of the above, I do not find anything to

interfere with the order impugned and it does not call for any

interference.

Accordingly, CO 1449 of 2020 is dismissed.

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.)