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2010 DIGILAW 1405 (CAL)

Sisir Bhattacharjee~ v. Gopinath Sett

2010-12-06

JYOTIRMAY BHATTACHARYA

body2010
JUDGMENT 1. THE judgment of the Court was as follows: By the impugned order, two applications filed by the plaintiff/petitioner were disposed of. The plaintiff's application for amendment of plaint was rejected by the first part of the impugned order being No. 29 dated 7.4.2010. By the later part of the impugned order the plaintiff's application for local investigation was allowed by the learned Trial Judge. 2. THE plaintiff is aggrieved by the first part of the impugned order by which his application for amendment of plaint was rejected by the learned Trial Judge. Accordingly, he has come before this Court with this application under Article 227 of the Constitution of India for challenging the first part of the impugned order by which his prayer for amendment of the plaint was rejected. Heard Mr. Gupta, learned Advocate appearing for the petitioner and Mr. Banerjee, learned Advocate appearing for the opposite parties. Considered the materials-on-record including the order impugned. 3. LET me now consider as to how far the learned Trial Judge was justified in passing the impugned order in the facts and circumstances of the instant case. The plaintiff filed a suit for declaration of his right, title and interest in respect of 'A' schedule property which is inclusive of 'C schedule property. The plaintiff has also sought for mandatory injunction seeking issuance of direction upon the defendants to remove the goods and the article from the 'C schedule property. He has also sought for a decree for permanent injunction for restraining the defendants from making any illegal construction and/or from changing the nature and character of 'C schedule property. Such relieves were claimed by the plaintiff on the basis of the following cause of action made out in the plaint. The plaintiff stated that the plaintiff is the owner of 'A scheduled property which is inclusive of 'C schedule property. The plaintiff further stated that the plaintiff was also the owner of 'B' scheduled property which is sold to the defendants. It was further stated therein that the defendants were permitted to possess some portion in the 'A scheduled property which is mentioned in 'C schedule of the plaint for the purpose of running his business therein. The plaintiff further stated that the plaintiff was also the owner of 'B' scheduled property which is sold to the defendants. It was further stated therein that the defendants were permitted to possess some portion in the 'A scheduled property which is mentioned in 'C schedule of the plaint for the purpose of running his business therein. The defendants assured the plaintiff that he would shift his business from the said 'C schedule property to his 'B' schedule property after a few month but subsequently instead of shifting his business from the 'C schedule property, he tried to make construction over the 'C schedule property illegally and wrongfully. Under such circumstances, the plaintiff filed the said suit for declaration and injunction. 4. SUBSEQUENTLY, the plaintiff filed an application under Order 6, Rule 17 of the Code of Civil Procedure for amendment of his plaint for incorporating therein an additional relief for recovery of possession of 'C schedule property. The plaintiff wanted to delete the reliefs which he claimed by an injunction in prayer 'B' and 'C of the plaint. The plaintiff also proposed to amend the other portions of the plaint in conformity with the relief which he wanted to introduce in the plaint by recovery of possession. The learned Trial Judge rejected the petitioner's said application for amendment of plaint by holding, inter alia, that if such an amendment is allowed, the nature and character of the suit will be changed as the suit for declaration and injunction will be converted into a suit for recovery of possession. The learned Trial Judge thus rejected the plaintiff's said application for amendment. 5. ON perusal of the materials-on-record as well as the order impugned, this Court is unable to accept the conclusion which was arrived at by the learned Trial Judge in the impugned order as this Court is of the view that unless the relief by way of recovery of possession which the plaintiff is now seeking to introduce in the plaint, is allowed, the suit may ultimately be dismissed on the ground of bar under Section 34 of the Specific Relief Act as he admitted in the plaint itself that he is not in possession of 'C schedule property. As a matter of fact, this relief for recovery of possession was available to him even at the time of presentation of the plaint. As a matter of fact, this relief for recovery of possession was available to him even at the time of presentation of the plaint. This relief was not included in the plaint. When the plaintiff after realizing that his suit may fail in the absence of such relief, he filed such application for amendment of plaint for seeking all the reliefs which he is entitled to get in the suit on the basis of the cause of action pleaded in the plaint. 6. IN my view, since the reliefs which the plaintiff has claimed, are available to him on the basis of the cause of action pleaded in the plaint, the Court cannot reject the plaintiff's prayer for such amendment. Accordingly, this Court holds that the first part of the impugned order cannot be allowed to be retained on record. As such, first part of the impugned order by which the plaintiff's prayer for amendment of plaint was rejected by the learned Trial Judge, stands set aside. The plaintiff is permitted to carry out such amendment in his plaint as per the provisions contained in Order 6, Rule 18 of the Code of Civil Procedure within two weeks from date. The plaintiff is directed to serve a copy of the amended plaint upon the defendants within two weeks after the reopening of the Court after the X-Mas Vacation. 7. LEAVE is granted to the defendants to file additional written statement to such amended plaint within four weeks from the date of service of copy of the amended plaint upon the defendants and/or learned Advocate-on-Record of the Court below. Such amendment is allowed subject to payment of cost of Rs. 1,000/- to the defendants. Such cost should be paid within two weeks from date.