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2007 DIGILAW 274 (CAL)

PAPPU SINGH v. NRIPATI BHUSAN HAZRA

2007-04-05

ARUN KUMAR BHATTACHARYA

body2007
A. K. BHATTACHARYA, J. ( 1 ) THE present revisional application under article 227 of the Constitution of India is directed against the order dated 10. 08. 2006 passed by the learned Judge, 3rd Bench, Small causes Court at Calcutta in Ejectment Suit No. 534 of 2000 dismissing the petitioner's application for amendment of his pleadings. ( 2 ) THE circumstances leading to the above application are that the o. P. /plaintiffs instituted a suit being Ejectment Suit No. 491/98 subsequently re-numbered as Ejectment Suit No. 534/2000 on transfer to the Court of Small Causes Court at Calcutta, against the petitioner/defendant on the grounds of default, reasonable requirement etc. The written statement was amended incorporating subsequent events regarding death of the mother of plaintiff No. 1 and possession of two rooms, earlier occupied by two tenants, by the plaintiffs. The plaint was subsequently amended in 2004 incorporating certain facts. After commencement of trial and filing of affidavit evidence of P. W. 1 denying construction of further rooms, and filing of additional written statement, the plaintiffs made further construction of rooms on the roof of the first floor thus making the premises partly three-storied building resulting in availability of further additional accommodation of the plaintiffs. The petitioner accordingly filed an application for amendment of his pleadings for incorporating the said subsequent events which was dismissed by the impugned order. ( 3 ) BEING dissatisfied the petitioner has come up before this Court. ( 4 ) MR. Jana, learned counsel for the petitioner, assailed the impugned order contending that unless the said subsequent events regarding construction cf further rooms resulting in availability of further additional accommodation to the O. P. /plaintiffs is brought on record by incorporating the same in the pleadings, his client will not be able to adduce any evidence in this regard, and as such the learned court below erred in law and fact in disallowing the amendment. Mr. Roy, learned counsel for the O. Ps. , on the other hand, contended that when trial has already commenced and there was abnormal delay in filing the said amendment petition, the learned Court below rightly dismissed the same. ( 5 ) TO start with, the Proviso to Rule 17 of Order 6 C. P. Code which was introduced by the Code of Civil Procedure (Amendment) Act, 2002, coming into force with effect from 01. 07. ( 5 ) TO start with, the Proviso to Rule 17 of Order 6 C. P. Code which was introduced by the Code of Civil Procedure (Amendment) Act, 2002, coming into force with effect from 01. 07. 2002, does not apply in the present case, the suit having been instituted in 1998 in view of section 16 (2) of the amending Act of 2002. In this connection, reference may be made to the case of State of Hyderabad v. Town Municipal Council, reported in (2007)1 SCC 765 . Accordingly, the question of want of due diligence in filing the application for amendment earlier is irrelevant. ( 6 ) IT is a guiding principle of amendment, that generally speaking, all amendments ought to be made "for purpose of determining the real question in controversy between the parties to any proceeding or of correcting any defeat or error in any proceeding". The rules of procedure are intended to be a hand-maid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules and procedure. The Court always allows amendment unless it is satisfied that there was mala fide or the blunder had caused injury to the opponent which could not be compensated by costs. However negligent or careless may have been the first omission and however late the proposed amendment, may be allowed if no injustice is caused to the other side, as was held in the case of J. J. Ram Manohar Lal v. National building Material Supply, Gurgaon, reported in AIR 1969 SC 1267 . In the case of B. K. N. Filial v. P. Pillai, reported in AIR 2000 SC 614 it was held that the principles applicable to the amendment of plaint are equally applicable to the amendment of the written statement. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. Subsequent developments and altered circumstances are relevant adjudging the nature and character of the claim made, at all stages of the proceedings, and the Court should permit the amendment bringing such subsequent developments and altered circumstances on the record. In this connection, reference may be made to the case of S. N. Kapoor v. Basant Lal Kshetri, reported in AIR 2002 SC 171 . In this connection, reference may be made to the case of S. N. Kapoor v. Basant Lal Kshetri, reported in AIR 2002 SC 171 . In the case on hand, by the proposed amendment the petitioner/defendant wanted to bring on record subsequent events to establish that the accommodation available with the O. P. /plaintiffs is sufficient for their requirement. ( 7 ) IN the light of the above discussion, the learned Court below appears to have acted illegally in disallowing the prayer, and as such the impugned order is not at all sustainable. ( 8 ) THEREFORE, the present application be allowed and the impugned order dated 10. 08. 2006 passed by the learned Court below in Ejectment suit No. 534 of 2006 be set aside. ( 9 ) LET a copy of this order be sent down at once to the learned Court below with a direction to dispose of the application filed by the petitioner/defendant in the light of the observation made above and according to law within a period of one month from the date of communication of the order. ( 10 ) URGENT xerox certified copy of this order, if applied for, be supplied to the parties with utmost expedition. .