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2008 DIGILAW 166 (CAL)

Maya Rani Laha v. Birendra Nath Auddy

2008-02-07

BISWANATH SOMADDER

body2008
Judgment :- (1.) HEARD the learned Advocate appearing on behalf of the parties. (2.) THIS is an application under Article 227 of the Constitution of India directed against an order, being Order No. 576 dated 27th October, 2005, passed by the learned Civil Judge (Senior Division) 3rd Court at Alipore in title Suit No. 249 of 1980. (3.) BY the impugned order, the learned Court below allowed the amendment application of the plaintiff, being the opposite party No. 1 herein, by inter alia observing as follows :- ". . . . Having heard Ld. Advocates on both sides and having gone through the proposed averments, I am of the opinion that the same should be allowed to be incorporated into the pleading for proper adjudication of the controversy and if this amendment is allowed, then in my humble opinion, defendant No. 3 shall not be prejudiced in any manner. The defendant shall have scope of filing additional written statement and she will have scope to disprove the assertions made by the plaintiff. On the other hand, it will also help to avoid any chance of multiplicity of proceedings. In that view of the matter after due consideration of the facts and circumstances of the case, the amendment petition as made by the plaintiff on 22-7-2005 is allowed on contest". (4.) THE learned Advocate representing the petitioner herein draws my attention to the objection petition filed by his client before the learned court below and specifically refers to and relies upon paragraphs 3, 4, 5 and 6 of the said objection petition. He submits that the learned Court below, without taking into consideration the specific contention of his client, as stated in the said paragraphs referred above, proceeded to observe in the impugned order that if the amendment was allowed, the defendant No. 3 (petitioner herein) shall not be prejudiced in any manner since the said defendant would have scope of filing additional written statement to disprove the assertions made by the plaintiff. He submits that the learned Court below erred in his appreciation of law in making such observation while allowing the amendment petition of the plaintiff, being the opposite party No. 1 herein. He submits that the learned Court below erred in his appreciation of law in making such observation while allowing the amendment petition of the plaintiff, being the opposite party No. 1 herein. He submits that although the Court has a discretion to allow amendment of pleadings under the provisions of Order VI Rule 17 of the Code of Civil procedure and such discretion is very wide, the Court is also bound to find out from the facts and circumstances of a case, whether allowing such amendment would cause serious prejudice or injury or irreparable loss to the other party. He further submits that instead of dwelling on this aspect, learned Court below had proceeded to allow the amendment of the plaint on the basis that the defendant would have scope of filing additional written statement to disprove the assertions made by the plaintiff and therefore would not be prejudiced in any manner. He, thus, submits that the impugned order is required to be set aside by this Court. (5.) ON the other hand, learned Advocate appearing on behalf of the plaintiff, being opposite party No. 1 herein, submits that the order of the learned Court below has been passed upon correct appreciation of facts and law and that the provisions of Order VI Rule 17 of the Code of Civil procedure gives a wide discretion upon the learned Court to consider whether amendment of pleadings could be allowed or not. He submits, while relying on the following decisions of the Honble Supreme Court of India, that the learned Court below had rightly allowed his clients application for amendment of plaint :-i) AIR 2002 SC 3369 : (2003)1 WBLR (SC) 174 (paragraph 9) (Sampath Kumar v. Ayyakannu and Anr.)ii) AIR 2004 SC 4102 : (2004)2 WBLR (SC) 530 (paragraphs 12,13 and 14) [pankaja and Anr. v. Yellappa (D) by L. Rs and Ors. ] iii) (2006)4 SCC 385 : (2006)2 WBLR (SC) 18 (paragraphs 14 to 20) (Rajesh Kumar Aggarwal and Ors. v. K. K Modi and Ors.)iv) (2006)12 SCC 119 (paragraph 21} (State of A P and Ors. v. Pioneer Builders, A P.). v. Yellappa (D) by L. Rs and Ors. ] iii) (2006)4 SCC 385 : (2006)2 WBLR (SC) 18 (paragraphs 14 to 20) (Rajesh Kumar Aggarwal and Ors. v. K. K Modi and Ors.)iv) (2006)12 SCC 119 (paragraph 21} (State of A P and Ors. v. Pioneer Builders, A P.). (6.) AFTER considering the submissions made by the iearned Advocates appearing on behalf of the parties and after taking note of the decisions of the Honble Supreme Court cited by the learned Advocate appearing on behalf of the plaintiff, being the opposite party No. 1 herein and considering the facts of the instant case and upon perusing the order impugned, I am of the view that the Honble Supreme Court of India has been consistently observing that although Order VI Rule 17 of the Code of Civil Procedure confers jurisdiction on the Court to allow amendment at any stage of the proceedings and on such terms as may be just, no amendment should be allowed if serious prejudice, injury or irreparable loss is likely to be caused to the opposite party consequent to such amendment The Honble Supreme court, in fact, in one of the decisions cited by the learned Advocate appearing on behalf of the opposite party, in the case of Sampath Kumar v. Ayyakannu and Anr. reported in AIR 2002 SC 3369 in paragraph 9. has inter alia observed that the question of prejudice to the opposite party, if it arises, shall have to be answered by reference to the facts and circumstances of each individual case. The Honble Supreme Court in the said judgement went on to observe that no strait-jacket formula can be laid down (emphasis supplied by this Court). The other decisions of the Honble Supreme Court, cited by the learned Advocate appearing on behalf of the opposite party, in essence, reiterate broadly the same principles of law enumerated above. (7.) WHAT is, however, required to be considered in the facts and circumstances of the instant case is whether the learned Court below could have allowed the amendment application without taking into consideration the specific statements made by the petitioner herein, in her objection petition, especially those made in paragraphs 3, 4, 5 and 6 therein. (7.) WHAT is, however, required to be considered in the facts and circumstances of the instant case is whether the learned Court below could have allowed the amendment application without taking into consideration the specific statements made by the petitioner herein, in her objection petition, especially those made in paragraphs 3, 4, 5 and 6 therein. (8.) IT appears from the impugned order, the relevant portion whereof has been quoted above, that the learned Court below had primarily taken into consideration the fact that the proposed amendment would not cause any prejudice to the defendant No. 3, since she would have scope of filing additional written statement to disprove the assertions made by the plaintiff. In my view, the learned Court below has not applied the true scope of the courts discretion for allowing amendment of pleadings, as provided for under Order VI Rule 17 of the Code of Civil Procedure, while considering the facts and circumstances of the instant case. While using discretion for the purpose of allowing amendment of pleadings, the Court cannot be swayed by the fact that the party aggrieved by such amendment would have scope of filing additional written statement to disprove assertions made by the plaintiff and therefore such amendment of pleadings could be allowed. The aspect of prejudice has to be taken into account by the Court not merely on the above reasoning. Whether such amendment entails serious prejudice, injury or irreparable losses, is needed to be considered by the Court independently, not by simply saying that there is a scope of filing additional written statement to disprove the assertions made by the plaintiff. (9.) IN the facts and circumstances of the instant case, for reasons discussed above, the impugned order dated 27th October, 2005 is hereby set aside. The learned Court below is directed to hear out the amendment application of the plaintiff afresh, after taking into consideration the objection petition of the defendant No. 3, being the petitioner here in especially paragraphs 3, 4, 5 and 6 of the said objection petition and pass suitable orders in the matter (10.) THE petition for amendment shall be disposed of by the learned court below, one way or the other, within a period of three months from the date of communication of this order. Such direction is peremptory and the parties will not be allowed to seek any adjournment. Such direction is peremptory and the parties will not be allowed to seek any adjournment. (11.) TAKING note of the fact that the suit is pending since 1980, I further direct the learned trial Court to hear out and dispose of the suit as expeditiously as possible, preferably within eight months, but not later than twelve months from the date of communication of this order, without granting unnecessary adjournments to any of the parties. (12.) THE learned Court below shall not exceed the time-frame, as indicated above, for any reason whatsoever. With the above observations, the revisional application stands disposed of.