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2010 DIGILAW 879 (CAL)

Sambhu Dey v. Archana Dey

2010-07-28

TARUN KUMAR GUPTA

body2010
Judgment :- Tarun Kumar Gupta, J.:- This revisional application under Article 227 of the Constitution of India is directed against order No.35 dated 5th April, 2005 passed by the learned Civil Judge (Junior Division) at Barrackpore in Title Suit No.6 of 1997. By the impugned order learned Trial Court rejected the petition filed by the present petitioner/plaintiff praying for amendment of plaint under Order 6 Rule 17 C.P.C. It is a case of the petitioner/plaintiff that he filed said Title Suit No.6 of 1997 in the said Court against defendant/Opposite Party No.1 for declaration that registered deed of gift dated 30.03.1992 executed by Smt. Rani Bala Dasi since deceased in favour of respondent / opposite party No.1 was fraudulent, collusive, void and not binding upon the plaintiff/petitioner and for permanent injunction, so that the respondent / opposite party No.1 may be restrained from transferring and / or alienating the property to anybody. It was a specific case of the petitioner/plaintiff that the subject matter of the aforesaid deed of gift dated 30.03.1992 was actually the property of the father of the petitioner / plaintiff and O.P. / defendant No.1 and others and that their father purchased the said property in the name of their mother Smt. Rani Bala Dasi with his money and accordingly on the death of their father plaintiff became a co-sharer of the property and Rani Bala Dasi had no authority to make any deed of gift. It is further case of the petitioner/plaintiff that he initially obtained an ad interim order of injunction restraining Respondent/ Opposite Party No.1 from transferring the said property to anybody but later on the petition injunction was rejected and respondent/opposite No.1 transferred the same to respondent No.1(a) who was made a party in the said suit. It is further case of the petitioner that the opposite party / defendant No.1 and others verbally threatened the plaintiff from dispossessing him from the suit property alleging that in Title Suit No. 521 of 1986 pending in the Court of learned Munsif, 2nd Court, Barasat petitioner / plaintiff filed written statement admitting that Rani Bala Dasi was the original owner of the suit property. As plaintiff/petitioner was not aware of the said Title Suit No.521 of 1986 and did not file any W.S. therein he wanted to bring on record through amendment that he did not file any W.S. or written objection in said suit or that Opposite Party/defendant by false personification filed said W.S. / written objection, if any, in Title Suit No.521 of 1986 etc. Learned Trial Court after contested hearing rejected the prayer of the petitioner/plaintiff for bringing those facts in the Title Suit No.6 of 1997 by way of amendments as those were not required for proper adjudication of the pending Title Suit No.6 of 1997. During hearing learned Advocate Mr. Shibasish Ghosh for the petitioner /plaintiff has referred a case law reported in (2006) 4 SCC page 385 (Rajesh Kumar Aggarwal and others v. K.K. Modi and others) to impress upon this Court that Court should be liberal in the matter of allowing amendments which may be necessary for determining the real question in controversy between the parties. He has also referred a case law reported in (2006) 6 SCC page 498 (Baldev Singh and others v. Monohar Singh and another) wherein it was held that a wide power and unfettered discretion has been conferred on the Court to allow amendment of pleadings, in such manner and on such terms as it appears to Court to be just and proper. The propositions of law as laid down in those case laws are not disputed. The amendments which are required for just and proper adjudication of the suit should be allowed by a Court of law. In the proposed amendment the petitioner/plaintiff tried to make out a case that W.S./ written objection, if any, filed in Title Suit No.521 of 1986 did not bear his signature or that the same was filed by Opposite Party/Defendant through false personification etc. Admittedly, those allegations are not required to be adjudicated in the pending Title Suit No.6 of 1997. If petitioner/plaintiff has any grievance about written statement or written objection alleged to be filed in his name in Title Suit No.521 of 1986 he should have approached the concerned Court ventilating his grievance as stated in the petition of amendment. Admittedly, those allegations are not required to be adjudicated in the pending Title Suit No.6 of 1997. If petitioner/plaintiff has any grievance about written statement or written objection alleged to be filed in his name in Title Suit No.521 of 1986 he should have approached the concerned Court ventilating his grievance as stated in the petition of amendment. As those allegations of petitioner/plaintiff are not required to be adjudicated in this case, I find no infirmity in the impugned order of learned Trial Court, justifying interference by this Court of revision by invoking extraordinary power under Article 227 of the Constitution of India. As a result, C.O. 1719 of 2005 stands dismissed on contest. The order of stay, if any, stands vacated. Let a copy of the order be forwarded to learned Trial Court expeditiously for information and necessary action. Urgent xerox certified copy of this order be supplied to the learned Counsels of the party / parties, if applied for.