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2010 DIGILAW 923 (CAL)

Sk. Kibria v. Sanjib Kolay

2010-08-03

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of plaintiff and is directed against the order dated 18.05.2010 passed by the learned Civil Judge (Junior Division), Fifth Court, Howrah in Title Suit No.10 of 2005 thereby rejecting an application under Order 6 Rule 17 of the Code of Civil Procedure. 2. THE plaintiff/petitioner took tenancy of the suit property as described in the schedule of the plaint from one Ashoke Kumar Koley by executing a deed of agreement dated 03.05.1982 and the deed of agreement was duly registered. THE plaintiff started a Shaw mill. After death of Ashoke Kumar Koley, the defendants collected rents from the petitioner. They tried to evict the petitioner from the suit property forcibly with the help of their men and agents and for that reason the petitioner filed the Title Suit for declaration of their tenancy right over the suit property and injunction. The defendants are contesting the suit by filing a written statement stating, inter alia, that the suit property was all along in the possession and enjoyment of one tenant, namely, Purusutam Patel, in terms of one tenancy agreement but as he failed to pay the rent, his tenancy was terminated by a notice dated 09.06.2004. But, in order to grab the suit property, the petitioner has claimed that he is the tenant with regard to the suit property. It is the specific contention of the defendants that the petitioner never possessed the suit property at all. 3. BOTH the parties adduced evidence in support of their respect contentions. After close of the evidence, the suit was fixed for argument. 4. AT that stage, the petitioner filed the application for amendment of the plaint contending, inter alia, that Purusutam Patel was a tenant under the plaintiff in respect of the suit property under an agreement dated 10.04.1997 and in was in possession up to 09.04.2006. But Purusutam Patel failed to pay the occupational charges and for that reason he was asked to vacate the suit property upon termination of the tenancy. Ultimately, the plaintiff filed a suit for eviction and recovery of possession against the said Purusutam Patel before the learned Civil Judge (Junior Division), Third Court, Howrah but the said suit was dismissed for default for non-taking steps. Mr. Ultimately, the plaintiff filed a suit for eviction and recovery of possession against the said Purusutam Patel before the learned Civil Judge (Junior Division), Third Court, Howrah but the said suit was dismissed for default for non-taking steps. Mr. Chatterjee, learned Advocate appearing on behalf of the petitioner, contended that amendment can be allowed at any stage of the suit and it should ordinarily be granted unless any prejudice is caused to the defendants. In the instant case, if the proposed amendment is allowed, the defendants/opposite parties will not suffer but court may allow the application even on payment of costs if it thinks fit so. He also submits that amendment can even be allowed at the stage when the matter is pending before the Apex Court. 5. ON the other hand, Mr. Chowdhury, learned Advocate appearing for the opposite parties, submits that in the instant suit the plaintiff has come up with the prayer of amendment after close of the evidence on behalf of both the sides. The plaintiff was very much aware of the contention of the defendants/opposite parties. He was aware that the defendants/opposite parties have claimed that Purusutam Patel was a tenant under them. Both the parties have adduced evidence on the basis of the pleadings of the parties. After close of such evidence when the plaintiff knew that he has no case, he filed the application to drag the matter for an unending period. So, he has prayed for dismissal of the application. 6. UPON hearing the submission of the learned Advocate of both the sides and on perusal of the materials on record, I find that the proposed amendment has been filed at the stage of hearing argument over the suit, that is, after close of the evidence of both the sides. The copy of the written statement has been filed in accordance with law and one copy of such a written statement has been served upon the plaintiff long time back and he had the opportunity of going through the contents of the written statement which lays down that Purusutam Patel was a tenant under the defendants/opposite parties. Therefore, the contention of the defendants/opposite parties was very much known to the plaintiff long time ago and so, it could not be held that in spite of due diligence the petitioner could not have raised the matter before the commencement of the trial. Therefore, the contention of the defendants/opposite parties was very much known to the plaintiff long time ago and so, it could not be held that in spite of due diligence the petitioner could not have raised the matter before the commencement of the trial. In consideration of the said situation, I am of the opinion that the application for amendment of the plaint cannot be allowed in view of the proviso to Order 6 Rule 17 of the C.P.C. The learned Advocate for the defendant/opposite parties has referred to the decision in the case of Khushi Ram Vs. Murli Manohar Thatheran Panchayati Mandir and Dharamsala Society reported in 2010 (2) ICC 576 and he submits that the present case squarely falls within the observations made in the said decision. I have considered the decision which also lays down for rejection of the prayer for amendment of the plaint in the same circumstances as in the present one. 7. SO, upon due consideration of the entire situation, I am of the view that the learned Trial Judge was perfectly right in rejecting the prayer for amendment of the plaint. I am of the view that there is nothing to interfere with the impugned order. Accordingly, the application is meritless. It is dismissed. Considering the circumstances, there will be no order as to costs.