Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 393 (CAL)

SUREN BAID v. PRAKRITI NATH MUKHERJEE

2005-06-23

SUBHRO KAMAL MUKHERJEE

body2005
SUBHRO KAMAL MUKHERJEE. J. ( 1 ) THIS is an application under article 227 of the Constitution of India against order dated February 3, 2005 passed by the Learned Civil Judge (Senior Division), Tenth Court at Alipore, District: South 24 Parganas in Title Suit No. 13 of 2004. ( 2 ) MR. Dipankar Ghosh, learned advocate appearing for the petitioner and Mr. Asish Kumar Das, learned advocate appearing for the opposite parties submit that initially the suit was instituted in the year 1990 in the court of the Learned Civil Judge (Senior Division), Eighth Court at Alipore and was registered as Title Suit no. 9 of 1990. On transfer to the court of the Learned Civil Judge (Senior Division), Tenth Court at Alipore the suit has been renumbered as Title Suit No. 13 fo 2004. ( 3 ) THEREFORE, it is an admitted position that the suit was instituted prior to coming into operation of the amendments of the Code of Civil procedure as amended by the Code of Civil Procedure (Amendment) Act, 1999 and 2002. ( 4 ) SECTION 16 (2) (b) of the Code of Civil Procedure (Amendment) Act, 2002 contemplates that notwithstanding the provisions of the Code of Civil procedure (Amendment) Act, 2002 having come into force, the provisions of Order 6, Rule 17 as amended by the Code of Civil Procedure (Amendment) Act, 2002 shall not apply in respect of any pleading filed before the commencement of the said Amendment Act. ( 5 ) UNDISPUTEDLY, the pleadings were filed prior to commencement of the Code of Civil Procedure (Amendment) Act, 2002. Therefore, the learned trial judge applied wrong tests in rejecting the application for amendment of the plaint on the ground thai as the trial has commenced, the plaintiff is required to plead and prove that in spite of his due diligence he could not raise the matter before commencement of the trial. ( 6 ) I have perused the application for amendment of the plaint. By the proposed amendment the plaintiff only wanted to insert another prayer in the plaint. ( 7 ) THIS is a suit for specific performance of contract. The plaintiff alleges that there were other suits for specific performance of contract in respect of the subject matter of this suit against the opposite parties 1 and 2 in this revisional application and the said suits have been decreed. ( 7 ) THIS is a suit for specific performance of contract. The plaintiff alleges that there were other suits for specific performance of contract in respect of the subject matter of this suit against the opposite parties 1 and 2 in this revisional application and the said suits have been decreed. Therefore, the plaintiff was compelled to pray to insert a prayer for recovery of the purported earnest money. ( 8 ) I, therefore, set aside the order impugned and allow the application for amendment of the plaint, which has been annexed as Annexure-P/3 at Page 47 of this revisional application, and permit the plaintiff to insert prayer (b) (i) after prayer (b) in the plaint. ( 9 ) THE plaintiff is directed to file amended plaint incorporating prayer (b) (i) within fortnight from this date. Liberty is, also, granted to the defendants to file their additional written statement, if any, by two weeks thereafter. ( 10 ) THE learned trial judge is requested to make ail endeavours to see that the suit is disposed of by December, 2005. ( 11 ) IN order to secure compliance of this order, I authorise the learned trial judge, not to grant any unnecessary adjournment to either of the parties. 2065 CWN Prodyut Nath Bhaduri vs. Hon'ble C. J. of Calcutta High Courtand Ors. 957 ( 12 ) THE rcvisaonal application is, thus, disposed of. I made no order as to cost. ( 13 ) URGENT xerox certified copy of the order. if applied for, same be supplied cxpeditiously. Revision allowed.