Calcutta High Court
Laxmi Srijan Pvt Ltd vs Sri Narayan Chandra Dutta & Ors on 20 May, 2025
1
OD-19
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
CS/93/2014
IA NO: GA/9/2025
LAXMI SRIJAN PVT LTD
VS
SRI NARAYAN CHANDRA DUTTA & ORS.
Before:
The Hon'ble Justice BISWAROOP CHOWDHURY
Date: 20th May 2025
Appearance:
Mr. Amitava
Mukherjee, Sr.,Adv.
Ms. Munmun Dubey,Adv.
Ms. Arpita Saha, Adv.
Ms. Antara Das,Adv.
...for the petitioner.
Mr. Purna Chandra Paul Chowdhury, Adv.
Mr. Deep Narayan Mukherjee, Adv.
Mr. Gopal Paul Chowdhury, Adv.
.....for the defendant no.3.
The Court: This is an application for amendment filed by the Defendant no-
3/petitioner praying for amendment indicated and underlined in RED Ink marked
with letter 'D' on the copy of the written statement.
It is the contention of the petitioner that the suit is misconceived one and liable
to be dismissed. The suit as framed is not maintainable in law. The subject matter of
the suit is based on an unregistered document purportedly introduced as an
Assignment agreement allegedly made on 18-01-2012. The said documents in no way
can be called an agreement for sale. The nomenclature and the subject matter
appearing on the said document do not tantamount to the concept of agreement for
sale as alleged.
The petitioner has further contended that the petitioner is the owner in respect
of 10.18 % undivided share concerning the premises No. 39, Nimtala Ghat Street
Kolkata - 700006. The obligation of the plaintiff as provided in the said purported
document dated 18.1-2012 are solely binding upon the plaintiff itself and the said
2
Bengal Property Centre - in terse and such obligation cannot be enforceable against
the petitioner.
It is also contended that the plaintiff with Sinister motive and shrouded
intention, has not impleaded the said Bengal Proprietory Centre or its
partners/proprietor with a purpose to mislead the Court only to suppress the
material fact as to the said effectiveness and ineffectiveness of the said purported
document date 03.05.2010 as well as alleged Assignment document.
It is contended that in the suit he has been arrayed as defendant no-3 and
after receipt of summons in the instant suit he filed written statement within the
time as prescribed by law and have been contesting the suit Due to inadvartance and
bonafide mistake some relevant points which are required for proper adjudication of
this instant proceedings has not been incorporated in his written statement.
It is contended that the following paragraphs be incorporated in the written
statement to achieve complete composite relief:
"15A. This defendant states that the said agreement dated 3rd May, 2010 was
made and executed by and between the defendants and M/S. Bengal Property Centre
where one SK. Mukhtar Ali and one Amarnath Mehta being the partners of the said
M/S. Bengal Property Centre put their signatures as intending buyers to the said
agreement for sale as mentioned hereinabove. In pursuance to the said agreement for
sale dated 3rd May, 2010 M/S. Bengal Property Centre through its proprietor namely
Amarnath Mehta by executing a notarized Agreement for Assignment dated 18th
January, 2012 purportedly assigned the liabilities as incorporated in the earlier
document dated 03.05.2010 in respect of the suit property in favour of the plaintiff
herein. Originally it transp-ires from the said Agreement dated 03.05.2010 the said
Bengal Property Centre was a partnership firm but the impugned Assignment
document discloses the said partnership firm became a proprietorship one without
notice of this defendant.
3
15B. The defendants herein are purportedly described as confirming parties to the
said Deed of Assignment dated 18th January, 2012 The origin of the said document is
an inter-se arrangement between the plaintiff and M/S. Bengal Property Centre and
based on the spirit and ideas purportedly provided in the document dated
03.05.2010, hence no relief can be sought for against the defendants in the instant
suit on the basis of the said notarized Deed of Assignment dated 18th January, 2012.
Rights and liabilities of the parties, if any, can only be determined and regulated in
terms of the Agreement for Sale dated 3rd May, 2010 and not from the said alleged
Deed of Assignment dated 18th January, 2012. Hence the instant suit is barred by
law of limitation and also the provision of Specific Relief Act (as amended from time
to time) can not be enforceable so far this proceeding is concerned. Morever the said
agreements are unregistered, hence the same should not be enforced under the law.
15 C. The plaintiff in this instant proceeding has become assignee of the said M/S.
Bengal Property Limited by virtue of an unregistered document purportedly termed
as deed of assignment and no relief and/or reliefs can be sought for in this instant
proceeding by praying specific performance of the said unregistered documents
allegedly introduced as deed of assignment dated 18th January, 2012 which is not
legally enforceable as per the specific provisions of Indian Stamp Act, 1899. The
subject Agreement dated 18.01.2012 as alleged which the Plaintiff seeks to enforce
by filing the instant suit, is not at all maintainable in the eyes of law and is a void
abinitio as being non-performable, not-executable and non-est in the eye of law.
15 D. This defendant further states that the agreement in question is a contingent
agreement depending on the happening of an uncertain future event, i.e., the rooting
out or vacating of the occupant/s of the premises etc. such an agreement cannot be
enforced, since the purport, nature and objective of the same is a contingent and
unpredictable contract. The said assignment document has no legal entity of its own.
One Arijit Dutta runs his business from the suit property, although the Defendants
4
by virtue of the Agreement for sale dated May 3, 2010 specifically agree that the
owners after evicting lawfully the occupants from the suit premises would hand over
the peaceful and vacant possession of the suit premises to M/S. Bengal Property
Limited or to its nominee as stated therein. The plaintiff herein by taking law in his
own hand and with the help of said Amarnath Mehta partner or proprietor in
question of the said Bengal Property Centre forcefully demolished the entire place of
business of the said occupants including the said Arijit Dutta and forcefully tried to
evict them from the premises in contrary to the terms of the said agreement dated 3rd
May, 2010. The said Amarnath Mehta/Bengal Property Center unauthorizedly acted
as owner of the premises in question. The Plaintiff has also deliberately feigned
ignorance to the specific clauses of the said alleged Assignment document which
purportedly specifies that the M/S., Bengal Property Center would sell the property
after putting the plaintiff into possession only upon evicting all the occupants from
the property. It is clear from the said purported agreements that neither the Plaintiff
nor the said M/s., Bengal Property has not yet been favoured and supported with any
legal right, title and thus the instant suit is wholly premature and is a desperate
attempt to force in a foul manner for specific performance of the said Agreement for
Sale as alleged against the defendants.
15E. The instant suit is founded on an assertion that the Plaintiff has by virtue of the
said purported Agreement for Sale allegedly acquired substantial legal right and title
over the suit property and sought decree for Specific Performance of Contract against
the Defendants on the purported ground that the Defendants are in breach of the
aforesaid alleged Agreement for Sale which is in fact a simpliciter Assignment
document. The Plaintiff allegedly claims sole right from the aforesaid alleged
Agreement dated 3rd May, 2010 and is basically seeking a relief for specific
performance of the terms of the said alleged Agreement for Sale under the umbrella
of the alleged assignment document, which ought not to be permissible under the
5
law. In fact upon following on the agreement dated 03.05.2010 the said Amarnath
Mehta of Bengal Property Centre has been styled and transmuted as owner of the
said premises. He is out and out a defaulted person who deliberately failed to honour
the said agreement dated 03.05.2010 and the provisions thereof.
15F. There is a termination clause in the agreement which presupposes that the
agreement is, in its very nature, determinable and this Defendant is entitled to
terminate the same. This defendant had already terminated his obligation and
returned alleged advance by cheques. The contract in question, is also determinable
in nature and this Defendant is entitled to rescind the same in accordance with the
law. The Defendant is eligible to restore from the Plaintiff all the benefits as a
consequence of recession or termination of the said agreement. The aforesaid two
agreements, in any event, stand cancelled, and such fact would be evinced from the
flow of events in respect of the conduct and correspondences exchanged between the
parties. The basis and manner of share of the defendants in the said property as
determined by the plaintiff is frivolous and not admitted.
15G. The plaintiff in a misconceived manner deliberately failed to implead M/s.,
Bengal Property Center or Amarnath Mehta as party to the instant suit. By reviewing
and considering all the pleadings in the suit it justly transpires that the said
Amarnath Mehta/ M/s., Bengal Property Center is a necessary party in the
proceeding and without their presence and statements proper adjudication of the
instant proceeding may be obstructed. Hence, the suit suffer from the principle of
non-joinder of parties."
It is submitted that such amendments may be inserted after paragraph 15 of
the written statement. It is further contended that the amendment sought for is
necessary for ascertaining the real question in controversy between the parties and
will not change the nature and character of the suit and the pleadings or the original
stand of this defendants.
6
The plaintiffs contested the case by filing written objection. It is the contention
of the plaintiff that the paragraphs 4 and 5 of the said application are denied and
disputed. It is denied by the plaintiff that the suit is misconceived and liable to be
dismissed as the suit is based on an unregistered document being an assignment
agreement made on 18-01-2012 and in no way can be called an agreement for sale as
alleged or that the plaintiff has no cause of action to file the instant suit. It is further
contended that the defendant including defendant no-3/petitioner has entered into
an agreement for sale with the plaintiff on 18-01-2012 keeping their eyes open and
knowing fully well about the contents of the said agreement and had accepted the
earnest money to the tune of Rs. 100,000/- each total amounting to Rs. 50,00,000/-
and inspite of receipt of the same the defendants have backed out and refused to
execute the deed of conveyance for which the plaintiff had no other option but to file
the suit for specific performance of contract. Under such circumstances the
defendant no. 3/petitioner has no right to allege that the agreement dated
18.01.2012 is not binding upon the defendants or that the agreement dated 3rd May
2010 executed by and between the defendants and M/S Bengal Property Centre was
also not valid and legal. The plaintiffs also denied and disputed statements made in
paragraph 7 and 8 of the said application that the defendant due to inadvertence and
bona fide mistake could not incorporate relevant point for proper adjudication in the
suit.
The defendant no-3/petitioner filed affidavit in reply re-iterating the
contentions made in the petition.
Heard Learned Advocate for the petitioner/defendant no-3 and Learned
Advocate for the opposite party/plaintiff. Perused the petition filed and Affidavit in
opposition and Reply and the written notes of arguments.
Learned Advocate for the Petitioner submits that the petitioner due to
inadvertence failed to incorporate the paragraphs sought for to be amended. Learned
7
Advocate further submits that the amendment sought for is necessary for complete
adjudication of the dispute, and that the proposed amendment sought for will not
change the nature and character of the suit. Learned Advocate also submits that the
instant suit is not maintainable against his client. Learned Advocate submits that the
plaintiff in their opposition to the said application for amendment of written
statement contended that it could be taken when the written statement was filed. It
does not mean that the amendment of written statement as sought for are not
relevant for proper disposal of the suit.
Learned Advocate relies upon the following judicial decisions.
Gulwant Kaur.VS Mahinder Singh.
1974(2) ICR Punjab and Haryana. 282
B.K.N. Pillai V P. Pillai
Reported in AIR-2000 S.C. 614
Sajjan Kumar VS Ram Kishan.
Reported in 2005 13 SCC-89.
Soumen Chowdhury VS Jaydeb Kundu.
Reported in 2025(1) ICC 1(Cal).
N.C. Bansal VS Uttar Pradesh Financial Corporation and Anr.
Reported in (2018) 2 SCC P347
USHA DEVI VS RI JWAN AHAMD AND OTHERS.
Reported in (2008) 3 SCC. P717.
Bijoy Krishna Pal VS Mohon Chatterjee and ors.
Reported in 2024 (4) ICC P. 127(cal)
Learned Advocate for the plaintiff/opposite party submits that the application
of the defendant no-3/petitioner is a mala-fide act which is made to delay the
proceedings. Learned Advocate further submits that the defendant no-3 got the
opportunity to incorporate these facts at the time of filing additional written
8
statement but he did not do so, and now he intends to delay the matter. Learned
Advocate also submits that the amendments are not necessary for adjudication of the
dispute. Learned Advocate for the plaintiff/opposite party submits that the plaintiffs
and the defendants discovered their documents and the Judges Brief was also
prepared after due scrutiny of document by both the parties. Issues were also framed
and the matter was fixed for witness action on 29th January 2025. At that point of
time the defendant no-3 came up with an application for amendment of written
statement seeking to introduce paragraph 15A to 15G i.e., 7 paragraph by way of
amendment of plaint. Learned Advocate further submits that the defendant no-3 is
trying to introduce a new case altogether by withdrawing the categorical admission
made in the original written statement filed by the defendant no. 3 on 5th May 2016.
The said paragraphs no 15A, and 15B will be evident that the same are in
contradiction to what stated in paragraph 7, 8, 9 and 10 of the original written
statement. Learned Advocate also submits that by introducing para-15C the
defendant is trying to introduce something which are all matter of law which is
already in the written statement. Furthermore the main intention of the defendant
no. 3 is to introduce one Arijit Dutta who happens to be his son into the suit by
describing him to be one of the occupant of a portion of the suit property and who is
required to be evicted in accordance with law which cannot be allowed in a suit for
specific performance of contract. Arijit Dutta being the son of the defendant no.3 is
bound by the decree if passed against defendant no. 3 as he has no independent
existence in the suit property.
It is submitted by the Learned Advocate that the defendant is trying to
withdraw admission made in the original written statement and trying to introduce a
new person in the suit property.
Learned Advocate relies upon the following judicial decision:-
Life Insurance Corporation of India VS Sanjeev Builders Pvt. Ltd.
9
Reported in AIR-2022 S.C. 4256.
Before proceeding to decide the material in issue it is necessary to consider the
provisions contained in Order VI Rule 17 of the Code of Civil Procedure.
Order VI Rule 17 provides as follows:
17. Amendment of pleadings - The Court may at any stage of the proceedings
allow either party to alter or amend his pleadings in such manner and on such terms
as may just and all such amendments shall be made as may be necessary for the
purpose of determining the real questions in controversy between the parties.
Provided that no application for amendment shall be allowed after the trial has
commenced unless the Court comes to the conclusion that in spite of due diligence
the party could not have raised the matter before the commencement of trial.
In the instant matter it is an admitted position that trial has not commenced.
Thus it is necessary to consider whether the proposed amendments sought to be
incorporated should be allowed.
In the case of Bijoy Krishna Pal (supra) a Learned Judge of this Court observed
as follows:
'17. The provision of Order VI Rule 17 of CPC can be divided into two parts.
The first part is discretionary ("may") and gives wide and unfettered discretion to
decide on case to case basis whenever it appears to be just. The court may or may
not allow the amendment to the proceeding for determining the real questions of
controversy. The approach of the Court should be liberal and not hypothetical.
Hence, the amendment to proceedings is not a right; rather it is in the discretion of
the court. The second part is mandatory ("shall") and orders the court to accept all
the applications necessary for the purpose of determining the real issue between the
parties if it finds that the parties could not have raised the issue in spite of the due
diligence before the commencement of the trial. However, such discretion must be
exercised by applying the judicial mind according to the well-established principles.
10
18. Moreover, it should be kept in mind that the Trial Courts which are the
Courts of first instance must adopt a balanced approach in dealing with the
applications and there has to be well considered reasoning behind the decision in
these aspects. It has to be pointed out that in cases where the amendment of the
plaint is necessary and the same is not allowed, it could virtually defeat the very
purpose of filing the suit itself.
19. Recently Hon'ble Apex Court in case of Varun Pahwa v. Renu Chaudhary
reported in (2019) 15 SCC 628 : [2019(2) ICC (S.C.) 176] observed that the
amendments in the pleading cannot be refused merely because of some mistake,
negligence, inadvertence or even infraction of the rules of procedure. The Hon'ble
Apex Court held in that case that even if a party is negligent or careless as the power
to grant amendment of the pleadings is intended to serve the ends of justice and is
not governed by any such narrow or technical limitation. The Hon'ble Apex Court
virtually allowed the amendment of the pleadings and observed that the Court should
avoid hyper technical approach in disposing the application praying for amendment
of the pleading.
20. In view of the foregoing reason, I am of the considered opinion that the
proposed amendment application filed by the plaintiff is to be allowed intending to
insert the prayer of Mandatory Injunction and recovery of possession of 'bodi' as
situated on the scheduled property.
21. In the result:
(a) This Civil Revision Petition is allowed and order dated May 16, 2013 passed
by the Learned Trial Court in connection with Title Suit No. 4 of 2012 is hereby set
aside to the extent of amendment as 'bhairab bedi' is concerned.
(b) The prayer for inserting Mandatory Injunction and recovery of possession in
the prayer portion of the plaint by the plaintiff in filing the amendment application is
hereby allowed.
11
(c) The trial court is directed to permit the revision petitioner to carry out the
amendment and file amended plaint;
(d) The defendant is permitted to file an additional written statement if any,
within 30 days from the date of filing of the amended plaint.
(e) Plaintiffs shall be given opportunity to adduce evidence upon the amended
portion of the plaint. Liberty shall also be given to the defendants to cross examine
the plaintiffs' witness.'
In the case of Usha Devi (supra) the Hon'ble Court observed as follows:
'15. In view of the decision in Sajjan Kumar we are of the view that this appeal
too deserves to be allowed. We may clarify here that in this order we do not venture
to make any pronouncement on the larger issue as to the stage that would mark the
commencement of trial of a suit but we simply find that the appeal in hand is closer
on facts to the decision in Sajjan Kumar and following that decision the prayer for
amendment in the present appeal should also be allowed.
16. As to the submission made on behalf of the respondents that the
amendment will render the suit non-maintainable because it would not only
materially change the suit property but also change the cause of action it has only to
be pointed out that in order to allow the prayer for amendment the merit of the
amendment is hardly a relevant consideration and it will be open to the respondent-
defendants to raise their objection in regard to the amended plaint by making any
corresponding amendments in their written statement.
In the case of B.K.N. Pillai (supra) the Hon'ble Court observed as follows:
"5. In the appeals the appellant-defendant wanted to amend the written
statement by taking a plea that in case he is not held a lessee, he was entitled
to the benefit of Section 60(b) of the Indian Easements Act, 1882. Learned
counsel for the appellant is not interested in incorporation of the other pleas
raised in the application seeking amendment The plea sought to be raised is
neither inconsistent nor repugnant to the pleas already raised in defence. The
alternative plea sought to be incorporated in the written statement is in fact
the extension of the plea of the respondent- plaintiff and rebuttal to the issue
regarding liability of the appellant of being dispossessed on proof of the fact
that he was a licensee liable to be evicted in accordance with the provisions of
law. The mere fact that the appellant had filed the application after a prolonged
delay could not be made a ground for rejecting his prayer particularly when the
respondent-plaintiff could be compensated by costs. We do not agree with the
finding of the High Court that the proposed amendment virtually amounted to
withdrawal of any admission made by the appellant and that such withdrawal
was likely to cause irretrievable prejudice to the respondent."
In the case of Gulwant Kaur (supra) the Hon'ble Court observed as follows:
"5. Learned counsel for the plaintiffs has also referred to the judgment of
a learned Single Judge of the Madras High Court in the State of Madras v.
Muniyappa Chetty, AIR 1956 Mad 679. The plaintiff in that case had claimed
ownership of certain property on the ground that he had become an absolute
owner thereof by reason of adverse possession for over sixty years, against the
State Government. He subsequently wanted to amend the plaint so as to claim
that he and his predecessors-in-interest had been in possession of the property
on the basis of an ancient grant which had been lost in antiquity. It was held
that such an amendment could not be allowed as the new case sought to be set
out as entirely different which would change the character of the case as was
originally put forward by the plaintiff. In the present case, the possession is
claimed under both the pleas with effect from the same date. The new plea
sought to be raised is not destructive of the original plea and both the pleas
could have been taken up in the suit originally in the alternative."
In the case of Life Insurance Corporation of India (supra) the Hon'ble
Supreme Court observed as follows:
70. Our final conclusions may be summed up thus:
(i) Order II Rule 2 CPC operates as a bar against a subsequent suit if the
requisite conditions for application thereof are satisfied and the field of amendment
of pleadings falls far beyond its purview. The plea of amendment being barred under
Order II Rule 2 CPC is, thus, misconceived and hence negative.
(ii) All amendments are to be allowed which are necessary for determining 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.
(vi) Where the amendment would enable the court to pin-
pointedly consider the dispute and would aid in rendering a
more satisfactory decision, the prayer for amendment should
be allowed.
(vii) Where the amendment merely sought to introduce an
additional or a new approach without introducing a time
barred cause of action, the amendment is liable to be
allowed even after expiry of limitation.
(viii) Amendment may be justifiably allowed where it is intended
to rectify the absence of material particulars in the plaint.
(ix) Delay in applying for amendment alone is not a ground to
disallow the prayer. Where the aspect of delay is arguable,
the prayer for amendment could be allowed and the issue of
limitation framed separately for decision.
(x) Where the amendment changes the nature of the suit or the
cause of action, so as to set up an entirely new case, foreign
to the case set up in the plaint, the amendment must be
disallowed. Where, however, the amendment sought is only
with respect to the relief in the plaint, and is predicated on
facts which are already pleaded in the plaint, ordinarily the
amendment is required to be allowed.
(xi) Where the amendment is sought before commencement of
trial, the court is required to be liberal in its approach. The
court is required to bear in mind the fact that the opposite
party would have a chance to meet the case set up in
amendment. As such, where the amendment does not result
in irreparable prejudice to the opposite party, or divest the
opposite party of an advantage which it had secured as a
result of an admission by the party seeking amendment, the
amendment is required to be allowed. Equally, where the
amendment is necessary for the court to effectively
adjudicate on the main issues in controversy between the
parties, the amendment should be allowed. (See Vijay Gupta
v. Gagninder Kr. Gandhi and Ors., 2022 SCC OnLine
Del1897) : (AIROnline 2022 Del 1797).'
Apart from the decisions cited by Learned Counsel; for the parties it is
necessary to consider the following Judicial decision.
Baldev Singh and others VS Manohar Singh and Anr.
Reported in (2006) 6 SCC. P 498.
The Hon'ble Supreme Court in the case of Baldev Singh and others (supra)
observed as follows:
"8. It is well settled by various decisions of this Court as well as the High
Courts in India that Courts should be extremely liberal in granting the prayer
for amendment of pleadings unless serious injustice or irreparable loss is
caused to the other side. In this connection, reference can be made to a
decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung (AIR 1922
P.C. 249) in which the Privy Council observed:
"All rules of courts are nothing but provisions intended to secure the
proper administration of justice and it is, therefore, essential that they should
be made to serve and be subordinate to that purpose, so that full powers of
amendment must be enjoyed and should always be liberally exercised, but
nonetheless no power has yet been given to enable one distinct cause of action
to be substituted for another, nor to change by means of amendment, the
subject-matter of the suit."
15.Let us now take up the last ground on which the application for
amendment of the written statement was rejected by the High Court as
well as the Trial Court. The rejection was made on the ground that
inconsistent plea cannot be allowed to be taken. We are unable to
appreciate the ground of rejection made by the High Court as well as the
Trial Court. After going through the pleadings and also the statements
made in the application for amendment of the written statement, we fail
to understand how inconsistent plea could be said to have been taken by
the appellants in their application for amendment of the written
statement, excepting the plea taken by the appellants in the application
for amendment of written statement regarding the joint ownership of the
suit property. Accordingly, on facts, we are not satisfied that the
application for amendment of the written statement could be rejected
also on this ground. That apart, it is now well settled that an amendment
of a plaint and amendment of a written statement are not necessarily
governed by exactly the same principle. It is true that some general
principles are certainly common to both, but the rules that the plaintiff
cannot be allowed to amend his pleadings so as to alter materially or
substitute his cause of action or the nature of his claim has necessarily
no counterpart in the law relating to amendment of the written
statement. Adding a new ground of defence or substituting or altering a
defence does not raise the same problem as adding, altering or
substituting a new cause of action. Accordingly, in the case of
amendment of written statement, the courts are inclined to be more
liberal in allowing amendment of the written statement than of plaint
and question of prejudice is less likely to operate with same rigour in the
former than in the latter case."
Right to defend is a basic right of all persons. A person has right to defend any
case brought against him before any Court, Tribunal or Administrative Authority.
Thus reasonable opportunity should be given to a person to defend his case. In the
instant case although date for witness action was fixed but evidence of witnesses did
not start and prior to that application for amendment was taken out.
Hence it is necessary to consider as to whether the proposed amendments
should be allowed for the purpose of deciding the actual controversy between the
parties. The suit is for specific performance of the contract and most of the
amendments sought for by the defendant no-3 are formal in nature and is necessary
to decide the controversy as both factual aspects and legal aspects are involved.
However proposed amendment sought for in paragraph 15 D of the schedule is not
necessary to decide the controversy between the parties rather it will complicate the
issue than resolving the same. It is also not relevant in the suit to know what a third
party is doing in the suit property or what steps are taken against them. Thus the
proposed prayer made in paragraph 15D of the schedule is rejected and rest of the
proposed amendments are allowed.
Let there be an order in terms of prayer b), c, d and e) of the Master Summons
dated 27-01-2025 subject to the modification that proposed amendment in item 15D
of written schedule is disallowed. Such order is subject to the payment of costs of
200 G.M.S within two weeks after vacation.
(BISWAROOP CHOWDHURY, J.)
A.Bhar(P.A)
