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2008 DIGILAW 117 (CAL)

Shiba Prasad Adhikary and others v. Sudarsan Ghosh and another

2008-01-25

PRASENJIT MANDAL

body2008
Judgment Prasenjit Mandal, J. This revisional application is directed against the judgment and order dated March 28, 1992 passed by the learned Additional District Judge, Third Court, Medinipur in Civil Revision Case No.55 of 1990 affirming the order no.30 dated May 15, 1990 passed by the learned Munsif, Garbeta, Medinipur - Medinipur in Title Suit No.7 of 1987 dismissing in part the petitioner’s prayer for amendment of the written statement. The petitioner is the defendant of the Title Suit No.7 of 1987. The plaintiffs / opposite parties filed the said title suit for declaration and recovery of possession of the suit land. The petitioner / defendant contested the suit. The learned Munsif dismissed that suit. The matter went to appeal and then the appellate court remanded the suit for fresh trial directing the parties to amend their pleadings if so advised and then to frame proper issues thereon. Thus, the judgment of the learned Munsif was set aside. Thereafter the petitioner / defendant filed an application for amendment of his written statement and such application was allowed in part. Then the petitioner/ defendant preferred the Civil Revision Case No.55 of 1990 which was dismissed. Against such order of dismissal the petitioner / defendant has come up with the revisional application. Having considered the submissions of the learned Advocate for the petitioner / defendant and on going through the a record, I find that the proposed amendment of the written statement consists of two parts of which a formal part which is consistent with the written statement was allowed by the learned Munsif. But the learned Munsif rejected the prayer of the petitioner / defendant to incorporate the prayer of counterclaim in the alternative form on the ground that such a prayer was inconsistent with the earlier prayer and that it was barred by limitation. The main contention of the petitioner / defendant in his written statement is that there was an oral agreement for sale of the suit land in favour of the petitioner / defendant and for that reason the petitioner / defendant paid a sum of Rs.5,100/- out of the total consideration money of Rs.5,400/- to the plaintiffs / opposite parties. But the plaintiffs / opposite parties failed to execute the deed of conveyance though the possession of the suit land lies with the petitioner / defendant. But the plaintiffs / opposite parties failed to execute the deed of conveyance though the possession of the suit land lies with the petitioner / defendant. In the circumstances, the petitioner / defendant has made a counter-claim to the effect either to execute the deed of conveyance according to the oral agreement or to pay back the money of Rs.5,100/- which had already been taken from him advance, as an alternative remedy. If this fact is considered with the earlier written statement, I hold that this is not altogether a new fact at all but an addition to a prayer of counter-claim in the alternative form which is not at all barred in the written statement. In a suit of this nature the Court is to solve the real controversy between the parties in suit and for that purpose all the amendments which are necessary for solving the controversy between the parties should be incorporated in the pleading. The delay in filing the application or the merit of the application shall not be the ground for not allowing the prayer for amendment of the written statement. In such a situation liberal approach should be taken particularly when the other side can be compensated with costs. Therefore, the proposed amendment if allowed will enable the parties to determine the real controversy between them. The dominant purpose of amendment of pleading is to minimise the litigation. The ruling reported in AIR 2007 S.C. 2511 , AIR 2007 S.C. 2577 , 2006(2) CCC 177 (SC) and (2001) 2 SCC 472 may be relied in support of such observations. Therefore, if the amendment sought for is allowed, it will solve the dispute between the parties in suit once for all. The Court below rejected the prayer for counter-claim on the ground that the claim is barred by limitation. In this regard, I hold that the question of limitation cannot be decided at this stage because it involves not only the matter of law but also facts. So unless evidence is tendered by the parties it cannot be decided at this initial stage whether the counter-claim is barred by limitation. In the circumstances, the proposed amendment should be allowed. The plaintiffs / opposite parties shall be given liberty to file a written statement to the counter-claim of the petitioner / defendant within such period as may be fixed by the learned trial court. In the circumstances, the proposed amendment should be allowed. The plaintiffs / opposite parties shall be given liberty to file a written statement to the counter-claim of the petitioner / defendant within such period as may be fixed by the learned trial court. If any objection is raised by the plaintiffs / opposite parties in respect of limitation, the trial court shall frame an issue which should be kept open for final decision at the time of trial. Accordingly the revisional application succeeds. It is allowed. The judgment and order dated March 28, 1992 passed by the learned Additional District Judge, Third Court, Medinipur in Civil Revision Case No.55 of 1999 affirming the order no.30 dated May 15, 1990 passed by the learned Munsif, Garbeta, Medinipur in Title Suit No.7 of 1987 is set aside. The petition for amendment of the written statement dated 14.03.1990 stands allowed with the aforesaid observations. Considering the circumstances, there will be no order as to costs.