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2004 DIGILAW 188 (CAL)

IDRIS ALI MULLICK v. ABDUR RAHIM MONDAL

2004-03-16

S.P.TALUKDAR

body2004
S. P. TALUKDAR, J. ( 1 ) THE judgment of the Court was as follows : the present case has arisen out of an application under Section 115 of Code of Civil Procedure. It is directed against Order No. 50 dated 19th july, 2002 passed by the learned Civil Judge, 3rd Court, Junior Division at baruipur, District 24-Parganas (South ). ( 2 ) AFTER hearing learned Counsel for both parties and having regard to materials-on-record it appears that the crux of the present controversy is as to whether the learned Trial Court was justified in rejecting the application under Order 6 Rule 17 of the Code of Civil Procedure filed by the present petitioner, as defendant before it. ( 3 ) IT appears from the impugned order that the said amendment petition was rejected mainly on two grounds, i. e. (i) on the ground that the said amendment application did not disclose any reason as to why such petition could not be filed earlier and (ii) that the proposed amendment was inconsistent with the defendant's title as revealed from the title deeds. ( 4 ) LEARNED Counsel for the petitioner referring to the decision in the case of Ganesh Trading and Co. , reported in AIR 1978 SC page 484, has submitted that amendment should not ordinarily be resisted unless it is in conflict with the earlier plaint. He further points out that the amendment is necessary to promote the interest of justice. He has also submitted that at present this Court is concerned with the amendment of written statement and not amendment of plaint. The Court must take a lenient and liberal approach in dealing with the petition for amendment and this is to be done in the best interest of justice. ( 5 ) LEARNED Counsel has, further, referred to the decision in the case of joyjoy Monoharlal v. National Building Material Supply, Gurgaon reported in air 1969 SC 1267 , in support of his contention that the Court ought to allow amendment of pleading unless it is satisfied that the amendment has caused injury to the opponent which may not be compensated for by an order for costs. ( 6 ) LEARNED Counsel has, further, referred to a decision reported in the case of B. N. Das and Ors. ( 6 ) LEARNED Counsel has, further, referred to a decision reported in the case of B. N. Das and Ors. v. Bijay Ketan Mohanti, AIR 1982 Orissa, 145 while submitting that amendment can be allowed at any stage of the proceeding. ( 7 ) IN response to the above, learned Counsel for the opposite party has submitted that the proposed amendment is inconsistent with the earlier stand of the defendants as revealed in the written statement. ( 8 ) IT appears that such amendment was filed on 19th July, 2002 and by virtue of the amendment of the Code of Civil Procedure which took effect on and from 1st July, 2002, the Court has to satisfy itself that the parties seeking amendment could establish before it that such amendment could not be done inspite of exercise of due diligence. Admittedly, trial of the suit has commenced. Subsequent to commencement of the trial such amendment petition has been filed. After perusal of the said amendment petition I find that no reasonable explanation has been given as to why such an application could not be filed earlier. In such backdrop I find it difficult to discard with the stand of the learned trial Court. In fact, the amendment of C. P. C. that has been referred to earlier stands in the way. Moreover, the defendant's stand in the written statement seems to be inconsistent with the stand it has proposed to take by virtue of such amendment. ( 9 ) LEARNED Counsel for the petitioner, however, has rightly submitted that it is not for the trial Court to act in anticipation and in this regard the observation that the proposed amendment is inconsistent with the title of the defendant does not seem to have any sound rational basis. But it is to be seen that the parties do not take inconsistent stand in the pleadings. ( 10 ) BE that as it may, in absence of any satisfactory explanation as to why such amendment could not be sought for earlier, I find that the trial court was quite justified in rejecting the said application. There is no infirmity or material irregularity in the order under challenge which calls for or justifies any interference by this Court. Accordingly, the present revisional case being c. O. No. 2282 of 2002 is dismissed. There will be no order as to costs. There is no infirmity or material irregularity in the order under challenge which calls for or justifies any interference by this Court. Accordingly, the present revisional case being c. O. No. 2282 of 2002 is dismissed. There will be no order as to costs. Let a xerox certified copy of this order be supplied to the petitioner as early as possible.