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2005 DIGILAW 74 (CAL)

SUVOBRATA GUHA ALIAS BASU v. SNIGDHA BASU (GUHA)

2005-02-03

JYOTIRMAY BHATTACHARYA

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Jyotirmay Bhattacharya ( 1 ) THIS application under Article 227 of the Constitution of India is directed against an order by which the learned 5th Civil Judge, Junior Division at Alipore in Title Suit No. 235 of 2004. ( 2 ) THE plaintiff is the petitioner before this Court. ( 3 ) THIS application is directed against an order by which the learned Trial judge rejected the petitioner's application for amendment of the plaint on the ground that if amendment as sought for is allowed, the right of the defendant which has been accrued on the basis of the statement made by the petitioner in his original plaint in paragraphs 14 and 19 thereof, will be defeated, as the petitioner is seeking to bring on record some new inconsistent facts by deleting the facts already stated by him in paragraphs 14 and 19 thereof relating to the actual ownership of the suit property. ( 4 ) HEARD the learned Advocates of the parties and considered the materials on record. ( 5 ) ON perusal of the original pleadings made by the petitioner in the plaint, it appears that the plaintiff filed this suit for injunction simpliciter for restraining the defendants and their men and agents from ousting the plaintiff from the 'a' schedule property forcibly without due course of law and also from encumbering and transferring the 'a' schedule property to any third party. ( 6 ) IN the original plaint, the plaintiff claimed that the defendant No. 1 is the mother of the plaintiff. After the death of the father of the plaintiff, the mother of the plaintiff married the defendant No. 2 for the second time. However, for securing a residential accommodation for the plaintiff, the grandfather of the plaintiff who allowed the plaintiff to stay in the 'a' schedule property, transferred his property by virtue of a registered deed in favour of the defendant No. 1 and his elder brother. ( 7 ) IT further appears from the said pleading that the plaintiff claimed that such transfer of ownership was made by his grandfather in favour of the defendant No. 1 only for the benefit of the plaintiff. ( 7 ) IT further appears from the said pleading that the plaintiff claimed that such transfer of ownership was made by his grandfather in favour of the defendant No. 1 only for the benefit of the plaintiff. Thus, it is claimed that since such transfer was made by the grandfather in favour of the mother of the plaintiff for the benefit of the plaintiff, the defendants have no right to dispossess the plaintiff from the 'a' schedule property except by due process of law. ( 8 ) IT appears from paragraphs 12, 14 and 19 of the said plaint that the plaintiff proceeded on the basis that the plaintiff/petitioner was staying in his grandfather's house in 'a' schedule property thereof. Thus, the ownership of the grandfather of the plaintiff in the suit property is admitted by the plaintiff in various parts of the pleadings of the original plaint. ( 9 ) ON perusal of the application for amendment of the written statement, it appears that the plaintiff, in fact, wants to introduce a completely new inconsistent set of pleadings by way of amendment by stating that as a matter of fact the grandmother of the plaintiff bequeathed the suit property in favour of the plaintiff by way of a Will and the probate of the said Will has also been applied for by the plaintiff/petitioner. The plaintiff also wants to introduce that the deed of gift which was executed by the grandfather in favour of the mother of the plaintiff was an outcome of collusion and conspiracy and as such, the defendant No. 1 could not acquire any title in the suit property by way of said deed of gift. ( 10 ) IT is also important to note here that in the proposed amendment, the plaintiff has also prayed for deletion of those paragraphs, viz. , paragraph Nos. 14 and 19 wherein the plaintiff claimed initially that the plaintiff was allowed to stay by his grandfather in his grandfather's house, i. e. , the suit property. ( 10 ) IT is also important to note here that in the proposed amendment, the plaintiff has also prayed for deletion of those paragraphs, viz. , paragraph Nos. 14 and 19 wherein the plaintiff claimed initially that the plaintiff was allowed to stay by his grandfather in his grandfather's house, i. e. , the suit property. ( 11 ) SUCH an application for amendment was rejected by the learned Trial judge on the ground that the right which has been accrued in favour of the defendants by virtue of the admission as made by the plaintiff in his own pleading cannot be allowed to be withdrawn, as withdrawal of such an admission will amount to defeat of the right which was accrued in favour of the defendants on the basis of such statement made by the petitioner in his original plaint. ( 12 ) ON perusal of the original plaint as well as the proposed amendment, I also agree with the findings of the learned Trial Judge, as I find that it is not a case where the plaintiff/petitioner wants to explain away his admission made in the pleadings. Rather, an attempt has been made by the plaintiff/ petitioner to withdraw admission which the plaintiff already made in his pleading by way of deletion of certain paragraphs from his original plaint wherein the plaintiff accepted that the grandfather of the plaintiff was the original owner and the said grandfather of the plaintiff in order to secure a residential accommodation for the plaintiff gifted the said property in favour of the mother of the plaintiff for the benefit of the plaintiff. ( 13 ) BY such amendment, the petitioner, in fact, wants to introduce that it is the grandmother and not the grandfather, who was the real owner of the suit property. ( 14 ) THUS, now if the plaintiff is permitted to delete the said statements from his original plaint and is further allowed to bring on record the fact which was sought to be introduced by way of amendment, as indicated above, that would cause irretrievable prejudice to the defendants/opposite parties. ( 14 ) THUS, now if the plaintiff is permitted to delete the said statements from his original plaint and is further allowed to bring on record the fact which was sought to be introduced by way of amendment, as indicated above, that would cause irretrievable prejudice to the defendants/opposite parties. Furthermore, it appears from the proposed amendment that though the plaintiff/petitioner wants to introduce a challenge with regard to the deed of gift made by the plaintiffs grandfather in favour of the defendant No. 1 still then no relief by way of declaration and/or cancellation of the said deed was sought to be introduced in the proposed amendment. Even no declaration has been sought for in the proposed amendment for declaring the title of the grandmother of the plaintiff in the suit property. ( 15 ) THUS, in the totality of the circumstances, it appears that the amendment, as sought for, is not a bona fide one and accordingly, in my view, no interference is necessary with the order impugned in the present circumstances. ( 16 ) THE revisional application, thus, fails. However, there will be no order as to costs. ( 17 ) URGENT xerox certified copy of this order, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the requisite formalities. Revisional application fails.