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2010 DIGILAW 803 (CAL)

Amalendu Roy v. Nirmalendu Roy

2010-07-14

TARUN KUMAR GUPTA

body2010
Judgment :- Tarun Kumar Gupta, J.:- This revisional application under Article 227 of the Constitution of India is directed against the order No.34 dated 03.02.2005 passed by the Civil Judge, (Junior Division), First Court, Ranaghat, in Title Suit No.179 of 2002 rejecting the application for amendment filed by the plaintiff/petitioner under order 6 Rule 17 of the Code of Civil Procedure. Being aggrieved with the said order dated 03.02.2005 the instant revisional application has been filed alleging inter alia that the petitioner/plaintiff filed the said suit for declaration of title and eviction of respondent/defendants being the licensees after termination of licence and that respondent/defendants started to contest the said suit by filing written statement. In the written statement the respondent/defendants being brothers of the present petitioner/plaintiff alleged that the suit property was purchased with the money of their father but the petitioner/plaintiff being the eldest son was entrusted to be present in the registry office at the time of registration and taking advantage of the same he got the deed in his name. Earlier the present petitioner/plaintiff made some amendments in his plaint by incorporating some facts relating to the case for correction of the records and that the respondent/defendants filed an additional W.S. wherein they for the first time alleged that the present plaintiff/petitioner admitting the fact that the suit property was purchased with the money of their father executed one declaration dated 21.07.1966 on stamp paper in favour of the defendants. In view of the said averments of the respondent/defendants in the said additional W.S. the petitioner/plaintiff has filed a petition for amendment under Order 6 Rule 17 read with Section 161 C.P.C. denying execution of the said declaration in favour of the defendants with a further case that as petitioner/plaintiff used to stay away from the suit property in connection with service he deposited some blank stamp papers duly executed by him in the custody of his father for taking loan for other purpose and that present defendants being brothers of the plaintiff fabricated those signed stamp papers. Petitioner/plaintiff also prayed for making certain amendments relating to B.L.R. case as well as for changing one date from 16.12.1960 to 06.12.1960. It appears that learned Trial Court allowed the amendments of plaint relating to item Nos. Petitioner/plaintiff also prayed for making certain amendments relating to B.L.R. case as well as for changing one date from 16.12.1960 to 06.12.1960. It appears that learned Trial Court allowed the amendments of plaint relating to item Nos. 3 and 4 relating to L.R. case record averments and change of date but refused amendments in para No. 1 and 2 which were relating to alleged execution of declaration by petitioner/plaintiff in favour of the respondent/defendants. In spite of service of notice upon O.P./defendants as it appears from affidavit in service none appeared from the side of O.P./defendants. Learned Advocate Mr. P.P. Naskar for the petitioner has submitted that for the first time in the additional W.S. O.P./defendants disclosed about those fabricated documents alleged to be declaration executed by the petitioner/plaintiff and accordingly the petitioner/plaintiff filed the said para Nos. 1 and 2 of the said amendment petition denying the same and also asserting the facts relating to the same and that proposed amendments in para 1 and 2 of the said petition would not have changed the nature and character of the suit and that the learned Trial Court rejected those amendments in para 1 and 2 on the plea that those will destroy the defence case. Learned Advocate for the petitioner/plaintiff has further submitted that so long proposed amendments are not going to change the nature and character of the suit learned Trial Court should have allowed the same as the amendments were required for proper adjudication of the suit. Admittedly Courts are very liberal in allowing amendments so long it does not change the nature and character of the suit and are also required for proper adjudication of the same. In this connection it is also pertinent to note that just by allowing the proposed amendments in para 1 and 2 of the petition of the plaintiff/petitioner those assertions do not stand proved and that the petitioner/plaintiff is required to prove those assertions by cogent evidence. Apart from that O.P./defendants will also get opportunity not only to file additional W.S. but also to adduce evidence to counteract those assertions to be brought on record by petitioner/plaintiff by para 1 and 2 of the amendment petition. Amendment in plaint explaining the facts alleged in W.S. where the hearing of the suit has not yet commenced may be allowed. Amendment in plaint explaining the facts alleged in W.S. where the hearing of the suit has not yet commenced may be allowed. Learned Advovate for the petitioner/plaintiff has cited a case law reported in 2004 AIHC1223 (ORI) (Monoranjan Mohanti versus Sarda Charan Mohanti). Accordingly, I find and hold that the part of the order refusing amendment of para 1 and 2 of the amendment petition filed by the petitioner/plaintiff amounts to not exercising jurisdiction vested in a Court of law causing miscarriage of justice. Accordingly, the instant C.O. No.1698 of 2005 under Article 227 of the Constitution of India is hereby allowed for ends of justice. The impugned order dated 03.02.2005 so far as it relates to refusal for allowing amendments of para 1 and 2 of the schedule of the amendment petition of the petitioner/plaintiff is hereby set aside. Learned Trial Court is hereby directed to amend the plaint allowing amendments in para 1 and 2 of the amendment petition of the petitioner/plaintiff and permit the petitioner/plaintiff to file amended plaint accordingly and thereafter an opportunity be given to the contesting O.P./defendants to file additional W.S., if any, against those amendments and then the Trial Court should proceed with the case as per law. Xerox certified copy of this judgment be supplied to the Counsels of the party/ parties, if applied for.