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2004 DIGILAW 189 (CAL)

BHAKTI PRASAD DAS v. NAMITA BOSE

2004-03-16

JYOTIRMAY BHATTACHARYA

body2004
JYOTIRMAY BHATTACHARYA, J. ( 1 ) 1. The plaintiffhas filed this application under Article 227 of the Constitution of India, inter alia, challenging an order dated 30. 4. 2003 passed by the learned civil Judge (Senior Division), 9th Court at Alipore, South 24-Parganas in Title suit No. 8 of 2000, whereby the plaintiffs application for amendment of plaint was rejected. ( 2 ) THE plaintiff filed the suit for eviction on the ground of reasonable requirement sometime in the year 2000. ( 3 ) SUBSEQUENTLY, the plaintiff filed an application under Order 6 Rule 17 of the Civil Procedure Code for amendment of his pleadings in the plaint. By the proposed amendment, the plaintiffs wanted to bring on record certain subsequent events by which the requirement of the plaintiffs has been increased during the pendenoy of the suit. According to the plaintiffs, the requirement of the plaintiffs has been increased as one of the plaintiffs, namely, plaintiff No. 4, who was in Kalyani has since been transferred to Calcutta sometime in the year 2002, i. e. , during the pendency of the suit. Since the said plaintiff along with his family members are now residing in the suit premises, the plaintiffs also require two more additional rooms to meet the requirement of the said plaintiff No. 4. ( 4 ) THUS, the plaintiff in effect wanted to bring on record certain subsequent changes with regard to the increased requirement of the plaintiffs which caused to have taken place during the pendency of the suit for the reasons as aforesaid. ( 5 ) THE learned Trial Judge, by his order dated 30. 04. 2003, was pleased to reject the said application for amendment by holding that there is no merit in the said application. ( 6 ) THE learned Advocate for the petitioner submits that the proposed amendment is absolutely necessary for the complete adjudication of the dispute involved in the suit. As such, the learned Trial Judge acted illegally in rejecting the petitioner's prayer for such amendment. ( 6 ) THE learned Advocate for the petitioner submits that the proposed amendment is absolutely necessary for the complete adjudication of the dispute involved in the suit. As such, the learned Trial Judge acted illegally in rejecting the petitioner's prayer for such amendment. ( 7 ) ON the contrary, the learned Advocate of the opposite party submits that since this application for amendment was filed after the commencement of trial of the suit, such prayer for amendment cannot be allowed in the absence of any explanation for delayed filing of the same in view of the proviso to the Order 6 rule 17 of the Code of Civil Procedure. ( 8 ) AFTER hearing the learned Advocates for the parties and after considering the materials on record, I find that the proposed amendment is absolutely necessary for the purpose of proper and complete adjudication of the dispute in the suit as in a suit for eviction on the ground of reasonable requirement unlike the other suits, the Court has to pass a decree for eviction by considering the requirement of the plaintiffs as on the date of passing of the decree and not on the basis of requirement of the plaintiffs as on the date of filing of the suit alone. In this regard reference may be made to the decision of this Court reported in AIR 1981 Cal page 413 (Shantilal vs. Ramesh), wherein it was held that reasonableness of the requirement is a question of fact which is to be determined as on the date of hearing of the suit. ( 9 ) AS such, any change in the requirement of the plaintiffs, which took place during the pendency of the suit, is a material consideration for the purpose of effective adjudication of the dispute involved in the suit. The proposed amendment, in my view, is necessary for the purpose of proper and complete adjudication of the dispute in the suit. The amendment, if allowed will not change the nature and character of the suit either. ( 10 ) IT appears from the record that the said application for amendment was filed in course of examination of the plaintiffs witness, i. e. , after the commencement of the trial of the suit. The amendment, if allowed will not change the nature and character of the suit either. ( 10 ) IT appears from the record that the said application for amendment was filed in course of examination of the plaintiffs witness, i. e. , after the commencement of the trial of the suit. As such, the proviso to Order 6 Rule 17 of the Code of Civil Procedure, which, according to the learned Advocate of the opposite parties, stands in the way of allowing such application, apparently appears to me to have some substance in view of the decision of the Hon'ble supreme Court reported in 2003 (8) SCC page 357 (Manjeet Singh Trilochan singh vs. Satpal), wherein it was held that the first hearing means the day on which the Court applies its mind to the case when either issues are determined or evidence is taken. In this regard reference may also be made to the decision of the Hon'ble Apex Court reported in 1987 (1) SCC page 222, Shamlal vs. Atme nand Jain Sabha, (Registered) wherein it was held that the first day of hearing as meaning not the day for the return of summons or the returnable day, but the day on which the Court applies its mind to the case which ordinarily would be at the time when either issues are determined or evidence is taken. ( 11 ) THUS, for all practical purposes, it appears to me that this application for amendment was filed after the commencement of the trial of the suit. Therefore, proviso to Order 6 Rule 17 of Civil Procedure Code is applicable in the instant case. But the said proviso to Order 6 Rule 17 of the Code of Civil procedure does not put total embargo upon the Court in allowing the amendment after commencement of trial. The said restriction is lifted once the Court is satisfied that in spite of due diligence the party could not have raised the matter before commencement of trial. ( 12 ) LET me now examine how far the said proviso stands as a bar in allowing amendment in the instant case. It appears from the records that the suit was filed in the year 2000. At the time of filing the suit the plaintiff No. 4 was in kalyani in connection with his service. ( 12 ) LET me now examine how far the said proviso stands as a bar in allowing amendment in the instant case. It appears from the records that the suit was filed in the year 2000. At the time of filing the suit the plaintiff No. 4 was in kalyani in connection with his service. As such his requirement of the suit premises was not pleaded in the original plaint. According to the plaintiffs, the said plaintiff No. 4 has subsequently been transferred to Calcutta sometime in the year 2002 i. e. , during the pendency of the suit. It appears from the order impugned that the trial of the suit commenced on 13th September, 2001 and in course of examination-in-chief of the plaintiffs witness being PW. 1, this application for amendment was filed on 23rd April, 2003. ( 13 ) THUS, it appears to me that since the extent of requirement of the plaintiffs has been increased after the commencement of trial, the plaintiffs/ petitioners, in spite of due diligence, could not have filed the said application for amendment, before the commencement of trial. As such the amendment, as prayed for, cannot be refused by applying the said proviso in the instant case. ( 14 ) FURTHERMORE, I do not find any unreasonable and/or inordinate delay in applying for amendment. The amendment which has been sought for, is very much material for the purpose of disposal of the dispute involved in the suit. As such the amendment, as prayed for, should be allowed. ( 15 ) THE impugned order is, thus, set aside. The revisional application stands allowed. The plaintiffs prayer for amendment of the plaint is hereby allowed subject to payment of costs assessed at 10 (ten) Gms. to be paid by the plaintiffs/ petitioners to the learned Advocate of the defendant in the Court below within a period two weeks from date. The defendant is also permitted to file additional written statement within a period of four weeks from date. ( 16 ) IN default of payment of costs within the aforesaid period, the order impugned will stand. The defendant is also permitted to file additional written statement within a period of four weeks from date. ( 16 ) IN default of payment of costs within the aforesaid period, the order impugned will stand. ( 17 ) SINCE the suit is a suit for eviction on the ground of reasonable requirement and since the suit is pending for disposal since 2000, the learned trial Judge is hereby directed to dispose of the said suit expeditiously and preferably within a period of six months from the date of communication of this order. ( 18 ) URGENT xerox certified copy of the order, if applied for, be applied to the parties upon compliance of all formalities. Revisional application allowed.