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2009 DIGILAW 474 (CAL)

Pradyut Kumar Paul v. Rashmani Modak

2009-07-03

JYOTIRMAY BHATTACHARYA

body2009
JUDGMENT 1. In spite of service, none appears on behalf of the opposite parties at the time when this application is called on for hearing today. 2. This application under Article 227 of the Constitution of India is directed against an order being No. 384 dated 12th December, 2003 passed by the learned Civil Judge, (Junior Division), 2nd Court at Kalna, District Burdwan in Title Suit No. 351 of 1978, whereby the plaintiffs' application for amendment of plaint was rejected by the learned Trial Judge. 3. The propriety of the said order is under challenge in this application at the instance of the plaintiffs/petitioners herein. 4. Heard learned Advocate for the petitioners. Considered the materials on record including the impugned order. 5. Let me now consider as to how far the learned Trial Judge was justified in rejecting the plaintiffs application for amendment of plaint in the instant case. 6. The plaintiffs filed a suit for declaration of their easement right in respect of the suit property and for demolition of the structure raised by the defendants in "ka-1" schedule property. 7. The plaintiffs earlier filed an application for addition of party under Order 1 Rule 10 of the Code of Civil Procedure in the said suit. In the said application, the plaintiffs prayed for permission to add the Board of Councillors of Katwa Municipality as added defendant in the said suit. The plaintiffs' said application for addition of party was rejected by the learned Trial Judge on 26th February, 2001 vide Order No.330. 8. The said order was challenged by the plaintiffs in revision under section 115A of the Code of Civil Procedure before the learned District Judge. The said revisional application was ultimately dismissed and the order which was impugned in the said revisional application was affirmed. 9. Being aggrieved by the said order, the plaintiffs earlier moved a revisional application before this Court. The said revisional application which was registered as C.O. No.19 of 2002 was also dismissed by Hon'ble Justice Bhaskar Bhattacharya on 11th January, 2002, by holding inter alia that for the purpose of deciding as to whether the plaintiffs have easement right over the suit property and further as to whether the defendants have violated the plaintiffs right of easement by making construction on the suit property or not, the presence of the Municipality in the suit is not at all necessary. His Lordship further opined that at best the Municipality can be a witness in the said suit but its presence in the suit as a party is not necessary. The said revisional application was thus rejected by His Lordship. 10. Subsequently, the plaintiffs filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amending his pleadings in the plaint. The petitioners' prayer for amendment of plaint was allowed by the learned Trial Judge on 14th January, 2003 vide Order No.364. By the said amendment, the petitioners introduced a challenge with regard to the validity and/or legality of the sanction granted by the Municipality to the building plan of the defendants. The plaintiffs further introduced by way of amendment that the sanction to the building plan submitted by the defendants was given in violation of the provisions of the Municipal Building Rules. It was further introduced that the said construction was raised by the defendants illegally without service of notice upon the concerned Municipality. 11. The defendants have also filed additional written statement dealing with the amended pleadings of the plaint. Subsequently an additional issue was also framed in the said suit. The said issue is as follows : "Is the construction raised on 'ka-1' schedule of the land illegal and against the Act, Rules and Regulations of the Municipality". 12. In the aforesaid changed scenario, the plaintiffs filed an application for amendment of plaint under Order 6 Rule 17 and read with Order 1 Rule 10 of the Code of Civil Procedure. In the said application the plaintiffs again sought for permission to implead the Board of Councillors of the said Municipality as a party defendant in the said suit. The plaintiffs further wanted to introduce by way of amendment that notice of this suit has also been served upon the said Municipality by registered post which was received by the said Municipality on 2nd June, 2003. Copy of the said notice, registration slip and the acknowledgement card were also tiled and the same should be treated as part of the plaint. 13. The plaintiffs said application for amendment of plaint and/or addition of party was rejected by the learned Trial Judge on the ground of res judicata as the plaintiffs' earlier prayer for addition of party was rejected earlier as aforesaid. 14. 13. The plaintiffs said application for amendment of plaint and/or addition of party was rejected by the learned Trial Judge on the ground of res judicata as the plaintiffs' earlier prayer for addition of party was rejected earlier as aforesaid. 14. In my view, the principle, of res judicata applies only when the tact remains unaltered. Here is the case where the plaintiffs have added subsequent pleadings by way of amendment after rejection of his application for addition of party. By the said amendment, the plaintiffs have challenged the illegal action on the part of the Municipality in the process of grant of sanction to the building plan submitted by the defendants. As issue has also been framed in the said suit regarding validity and legality of the sanction granted by the Municipality to the building plan submitted by the defendants. 15. The Court is now required to consider the legality of such sanction of the building plan in such altered pleadings of the parties. In effect the action of the Municipality in the process of grant of such sanction is also challenged in the said suit. In my view, such an issue cannot be effectively considered in the absence of the said Municipality. Accordingly, this Court holds that the learned Trial Judge acted illegality and with material irregularity in rejecting the petitioners said application for amendment of plaint and/or addition of party on the ground of res judicata alone, as this Court is of the view that the principle of res judicata will not apply in the instant case in view of the altered pleadings which were introduced by the plaintiffs in their plaint by way of amendment. 16. Accordingly, the impugned order stands set aside. 17. The petitioners are permitted to carry out such amendment in the plant as per Order 6 Rule 18 of the Code of Civil Procedure. The plaintiff's are also directed to serve copy of the amended plaint upon the defendants/ opposite parties within, two weeks from the date of carrying out such amendment in the plaint as per Order 6 Rule 18 of the Code of Civil Procedure. 18. Leave is granted to the defendants to file additional written statement to the amended pleadings of the plaintiffs within four weeks from the date of service of the copy of the amended pleadings upon the defendants. 18. Leave is granted to the defendants to file additional written statement to the amended pleadings of the plaintiffs within four weeks from the date of service of the copy of the amended pleadings upon the defendants. The plaintiffs are also directed to take steps for service of the writ of summons of the suit upon the added defendant in the learned Court below. 19. The revisional application is, thus, allowed. 20. Xerox certified, copy of this order, if applied for, be supplied to the learned Advocate for the petitioners as early as possible. Revisional application allowed.