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1993 DIGILAW 347 (CAL)

Ashoke Kumar Mukherjee v. Sukumar Deb

1993-07-26

SUDHENDU NATH MALLICK

body1993
JUDGMENT S. N. Mallick, J.: When this revisional application is taken up, the learned Advocate appearing for the petitioner has drawn my attention to his supplementary affidavit filed on 2nd July 1993 praying for amending the cause title of the revisional application on ground that the plaintiff O. P. Sukumar Dey having died during the pendency of the title appeal no. 102/90 pending before the learned Additional District Judge, 10th Court, Alipore his legal heirs were substituted and brought on record in the pending title appeal. The Ld. Advocate appearing for the O. P. who has already lodged caveat has no objection to the prayer being allowed as such the prayer is allowed and the cause title of the revisional application to be corrected accordingly. 2. The instant revisional application has been preferred by the petitioner appellant no. 1 against the order no. 27 dated 3. 5. 93 passed by the Ld. Additional District Judge, 10th Court Alipore in Title Appeal No. 102/90 arising out of the Title suit no. 137/85 of the 3rd court of Munsif at Alipore. By the said order the Ld. Additional District Judge refused the prayer of the present petitioner to amend the written statement. It has been submitted by the Ld. Advocate appearing for the petitioner that although prayer for amendment of written statement was made before the Ld. Additional District Judge before whom the appeal was pending for hearing he should have allowed the amendment because the proposed amendment was supported by the evidence on record led by the petitioner before the Trial Court. Before the Trial Court the defence taken in the written statement was that the present appellant defendant petitioner no. 1 hold the suit premises with the defendant no . 2 as joint tenants. This defence was abandoned at the time of trial and it has been submitted before me by the Ld. Advocate for the petitioner that evidence was led by the defendant that defendant no. 2 was residing with defendant no.1 with the knowledge and consent of the landlord. In the original written statement it was alleged that the defendants 1 and 2 were near relations and took the joint tenancy in. respect of the suit premises. It appears from the submissions made by the Ld. 2 was residing with defendant no.1 with the knowledge and consent of the landlord. In the original written statement it was alleged that the defendants 1 and 2 were near relations and took the joint tenancy in. respect of the suit premises. It appears from the submissions made by the Ld. Advocates for both the parties and from the Annexures to the petition that the suit was decreed on the ground unauthorised subletting of the suit premises by appellant no.1 to defendant no. 2. After preferring appeal against the said decree and judgement of the Trial Court the appellant filed a petition for amendment of the written statement to the effect that the defendant no. 2 was his younger brother and a close relation and that the landlord permitted the petitioner to allow the defendant No. 2 to stay with him in the suit premises. This is altogether a new story to frustrate decree of eviction. Furthermore surprising aspect of the thing is that at the time of hearing of the this application the Ld. Advocate appearing for the petitioner admitted that the defendant no. 2 was not the younger brother of the petitioner nor a close relation. In fact it is admitted the said defendant No.2 was a stranger. In the petition for amendment of written statement it has been further stated that the defendant No. 2 was allowed to reside in the suit premises as a caretaker as the permanent address of the appellant petitioner no. 1 was at Bankura where he had a medicine shop. The Ld. Advocate appearing for the petitioner has referred to a decision of the Supreme Court reported in AIR 1983 SC page 462 and has submitted that the pre posed amendment should have been allowed in view of the said decision. It has been held in the said reported case that that an admission made by a party may be withdrawn and may be extent or may be extent away by an amendment. This reported decision, in my opinion, has no application to the present case. The initial defence plea that the present petitioner and defendant No.2 were joint tenants in respect of the suit premises is not an admission but an assertion of fact which is to be proved by evidence. This reported decision, in my opinion, has no application to the present case. The initial defence plea that the present petitioner and defendant No.2 were joint tenants in respect of the suit premises is not an admission but an assertion of fact which is to be proved by evidence. I have already noted that this defence was abandoned at the time of hearing of the suit before the Trial Court. The Ld. Advocate for the petitioner has also referred to a decision of the Supreme Court reported in AIR 1979 SC at page 551 wherein it has been held that there is no impediment or bar against the Appellate Court permitting amendment of pleading so as to enable a party to raise a new plea. It has been also held there that "if the necessary material on which the plea arising from the amendment may be decided is already there the amendment may be more readily granted than otherwise" The Ld. Advocate for the petitioner submits that he has already led evidence before the Trial Court that defendant no. 2 was permitted to live with defendant no. 1 in the suit premises by the landlord. Undisputedly this was not the plea in his written statement. So the evidence if any, in this regard allowed to be led by the Ld. Munsif must be held to be beyond the pleadings and as such inadmissible. In that view of the matter the above reported decision of the Supreme Court cannot help the present petitioner in any way. The Ld. Advocate appearing for the O.P. has referred to a decision of the Supreme Court reported in AIR 1988 SC at page 1362. If the view of the Supreme Court in the above reported case that amendment should not be allowed if it takes away valuable right of the other side and since to incorporate and altogether a new plea. Under the circumstances. I do not find any legal infirmity in the impugned order passed by the Ld. Additional District Judge refusing the prayer for amendment of written statement. Such refusal has not caused any failure of justice. The revisional application has no merits, it stands dismissed. Revisional application dismissed.