Calcutta High Court
Aninda Saha And Anr vs Amal Saha And Ors on 1 September, 2025
ORDER O - 15
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
CS/80/1996
IA NO: GA/5/1997(Old No:GA/2506/1997)
GA/7/1999(Old No:GA/2319/1999)
GA/18/2024
GA/19/2024
ANINDA SAHA AND ANR.
VS
AMAL SAHA AND ORS.
BEFORE:
The Hon'ble JUSTICE BISWAROOP CHOWDHURY
Date: 1st September, 2025.
Appearance:
Mr. Shashwat Nayak, Adv.
Mr. Abhishek Kabir, Adv.
Mr. Sumit Biswas, Adv.
...for the plaintiffs
Mr. Arnab Dutt, Adv.
...for the defendants.
1.
The application (GA/18/2024) is filed by the petitioner/decree-holder
with a prayer for direction to the plaintiffs to pay the mesne profits for wrongful
occupation in the suit premises described in Schedule "A" of this application
for a total amount of Rs. 10,46,000/- from 01/01/1996 to 31/05/2024 and
further direction to the plaintiffs to pay the mesne profits for wrongful
occupation in the suit premises described in the Schedule "A" of this
application for a total amount of Rs. 45,000/- from 01/06/2024 till the
realization of the actual vacant possession of the suit premises being situated
at 13, Mondal Street, Kolkata-700006.
2. During pendency of this application, the petitioner/decree-holder has
taken out an application (GA/19/2024) for amendment by incorporating the
prayer for inquiry into the mesne profits since 01/01/1996 as per the
judgment cum decree dated 22/05/2024 passed in CS/80/1996. Learned
advocate for the petitioner submits that this prayer is important for
adjudication of the case and as the petitioner has missed out the prayer, liberty
be granted to make necessary amendment in GA/18/2024. Learned advocate
for the opposite party/ judgment-debtor objects to the prayer for grant of
amendment and submits that this application is not maintainable as because
once the petitioner/ decree-holder has quantified the amount of mesne profits,
he cannot make such prayer for enhancement of the same. Learned advocate
relies upon the decision of the Hon'ble Apex Court in the case of Eastralla
Rubber v. Dass Estate (P) Ltd. reported in (2001) 8 SCC 97.
The Hon'ble Apex Court in the said case observed as follows:-
"8. It is fairly settled in law the amendment of pleadings under Order 6 Rule 17 is
to be allowed if such an amendment is required for proper and effective adjudication
of controversy between the parties and to avoid multiplicity of judicial proceedings,
subject to certain conditions such as allowing the amendment should not result in
injustice to the other side; normally a clear admission made conferring certain right
on a plaintiff is not allowed to be withdrawn by way of amendment by a defendant
resulting in prejudice to such a right of the plaintiff, depending on the facts and
circumstances of a given case. In certain situations, a time-barred claim cannot be
allowed to be raised by proposing an amendment to take away the valuable accrued
right of a party. However, mere delay in making an amendment application itself is
not enough to refuse amendment, as the delay can be compensated in terms of
money. Amendment is to be allowed when it does not cause serious prejudice to the
opposite side. This Court in a recent judgment in B.K. Narayana Pillai v.
Parameswaran Pillai after referring to a number of decisions, in para 3 has stated,
thus: (SCC p.715)
"3. The purpose and object of Order 6 Rule 17 CPC is to allow either party to alter
or amend his pleadings in such manner and on such terms as may be just. The
power to allow the amendment is wide and can be exercised at any stage of the
proceedings in the interest of justice on the basis of guidelines laid down by
various High Courts and this Court. It is true that the amendment cannot be
claimed as a matter of right and under all circumstances. But it is equally true
that the courts while deciding such prayers should not adopt a hypertechnical
approach. Liberal approach should be the general rule particularly in cases where
the other approach should be the general rule particularly in cases where the other
side can be compensated with the costs. Technicalities of law should not be
permitted to hamper the courts in the administration of justice between the parties.
Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of
litigation."
In para 4 of the same judgment in A.K. Gupta and Sons Ltd. v. Damodar Valley
Corpn.
"The general rule, no doubt, is that a party is not allowed by amendment to set
up a new case of action is barred: Weldon v. Neal. But it is also well recognized
that where the amendment does not constitute the addition of a new cause of
action or raise a different case, but amounts to no more than a different or
additional approach to the same facts, the amendment will be allowed even after
the expiry of the statutory period of limitation: See Charan Das v. Amir Khan and
L.J. leach and Co. Ltd. v. Jardine Skinner and Co."
This Court in the same judgment further observed that the principles applicable to the
amendment of the plaint are equally applicable to the amendment of the written
statement as the question of prejudice is less likely to operate in that event. It is
further stated that the defendant has a right to take alternative plea in defence
which, however, is subject to an exception that by the proposed amendment the other
side should not be subjected to serious injustice and that any admission made in
favour of the plaintiff conferring right on him is not withdrawn."
3. Upon considering the nature of amendment and the provisions in
Order 6 Rule 17 where it is provided that the Court is empowered to permit
amendment which is required for effective adjudication of the controversy
between the parties and to avoid multiplicity of judicial proceedings, this
Court is of the view that as the direction for inquiry is within the power of
the Court with regard to mesne profit, the prayer for amendment made by
the petitioner/ decree-holder is formal in nature and does not change the
nature of the application. Thus, for interest of justice, this application for
amendment should be allowed. Thus, this application stands allowed.
4. Let there be an Order in terms of prayers (a), (b) and (c) of the Master's
Summons dated 22/11/2024.
5. Let the amendment be carried out within a period of two weeks and the
re-verification be made within one week thereafter.
6. GA/19/2024 is disposed of.
(BISWAROOP CHOWDHURY, J.)
R.D. Barua
