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2010 DIGILAW 558 (CAL)

Ranjit Kumar Shaw v. Rama Devi

2010-05-19

DEBASISH KAR GUPTA

body2010
JUDGMENT 1. THIS revisional application is directed against an order dated February 16, 2010 passed by the learned Civil Judge (Junior Division), 3rd Court at petitioners for amendment of the plaint on a finding that the amendment if allowed would change the nature and character of the suit property. 2. IT is submitted by the learned Counsel appearing for the plaintiffs/petitioners that the learned Court below failed to appreciate that only on receipt of the written objection from the defendant/opposite party, the petitioners came to know about a decree dated July 3,1985 and on July 11,1985 passed by the learned Munsef, 3rd Court at How rah in connection with T.S. No.233 of 1982. According to him, the above decree was passed ex parte and the same had no binding effect on the petitioners. Therefore, according to him, the amendment of the present suit could be allowed in order to avoid the multiplicity of the proceedings for challenging the aforesaid ex parte decree. IT is also submitted by him that the order was non-speaking and no reason was assigned in support thereof. On the other hand, it is submitted on behalf of the opposite party that the predecessors of the petitioners were the parties to the aforesaid T.S. No. 233/1982. According to him, it does not lie on the mouth of the petitioners that the aforesaid decree was not binding upon them. It is also submitted by him that the purpose of filing of the application for amendment was to obtain a declaration in the instant eviction suit which could only be obtained in a regular civil suit. It is further submitted by him that the cause of action in a plaint could not be altered in view of the settled principles of law as decided in the matter of Usha Balashaheb Swami v. Kiran Appaso Swami, reported in 2007 (5) SCC 606. 3. I have heard the learned Counsels appearing for the respective parties as also I have given my anxious consideration to the facts and circumstances of the case. Admittedly, the opposite party obtained a decree as back as in the 1985 in T.S. No. 233/1982 declaring the suit property as "Thika Property". Undisputedly, the predecessors of the petitioners were the parties to the above proceeding. The above decree had reached its finally. A declaration of the suit property could only be obtained in a regular civil suit. Admittedly, the opposite party obtained a decree as back as in the 1985 in T.S. No. 233/1982 declaring the suit property as "Thika Property". Undisputedly, the predecessors of the petitioners were the parties to the above proceeding. The above decree had reached its finally. A declaration of the suit property could only be obtained in a regular civil suit. It was not permissible to obtain a declaration with the regard to the suit property as in an eviction suit under the provisions of the West Bengal Premises Tenancy Act, 1997 and such an attempt would change the nature and character of the suit property. 4. REFERENCE may be made to the decision of Usha Balashaheb Swami (supra) and the relevant portions of the above decision are quoted below:- "19. It is equally well-settled principle that a prayer for amendment of the plain and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applied to amendments to plaint. It has no counterpart in the principles relating to amendment of the written Statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plain may be objectionable." In view of the above observations, I do not find any impropriety with regard to the finding of the learned Court below that the prayer for amendment of the petitioners, if allowed, would change the nature and character of the suit. 5. THIS revisional application fails. There will be no order as to costs.