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2010 DIGILAW 946 (CAL)

Jayanta Kumar Das v. Chand Kumar Das

2010-08-09

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is directed against the orders dated 06.01.2009 and 21.10.2009 passed by the learned Civil Judge (Junior Division), Sealdah in Title Suit No.27 of 2003 thereby rejecting an application under Order 6 Rule 17 of the Code of Civil Procedure and also rejecting the application for recalling of the said order dated 06.01.2009. 2. THE plaintiffs/petitioners filed the suit for a decree of permanent injunction against the defendants/opposite parties and in that suit, the defendants/opposite parties appeared and filed a written statement on 11.09.2008. Thereafter, plaintiffs/petitioners filed an application for amendment of the plaint contending, inter alia, that the schedule B property has not been properly described and one prayer in the plaint should be added by way of such amendment. THE defendants/opposite parties filed an objection against such an application. THE learned Trial Judge rejected the application under Order 6 Rule 17 of the C.P.C. by the impugned order. Being aggrieved, he filed an application for reconsideration of the order and that application was rejected. Being aggrieved, the plaintiffs/petitioners have preferred this application. Thus, upon hearing the submission of the learned Advocate of the petitioner and of the opposite parties and on perusing the materials on record, I find that amendment sought for is of two types. First of all, regarding the particulars of the schedule of the property as described in the plaint. Now on careful perusal of the schedule B of the plaint, I find that schedule B property lays down the premises no.147/B/H/4, Raja Rajendralal Mitra Road, Kolkata 700 010 clearly meaning a separate property which has bdescribed in schedule A to the plaint as premises no. 147/B/H/1, Raja Rajendralal Mitra Road. By way of amendment, the plaintiffs/petitioners have wanted to change that premises number by describing it 147/B/H/1, Raja Rajendralal Mitra Road with its boundaries. Now, on perusal of the schedule A of the plaint as appears in the original plaint it lays down the measurement of the land as 2 cuttah 7 chittaks under premises no. 147/B/H/1, Raja Rajendralal Mitra Road whereas the proposed schedule B property lays the measurement of the land more or less 1 cuttah 3 chittaks with certain boundaries. The plaintiffs/petitioners have claimed that their father was a thika tenant in respect of the schedule A property whereas one Laxmi Bala Dassi was the thika tenant in the schedule B of the plaint. The plaintiffs/petitioners have claimed that their father was a thika tenant in respect of the schedule A property whereas one Laxmi Bala Dassi was the thika tenant in the schedule B of the plaint. The boundaries of the two properties as described in schedule A and B have been furnished by way of amendment. Therefore, there is no difficulty in identifying the two plots separately. Previously, there was no particulars as regards boundaries and extent of land in the schedule B property. Therefore, I am of the view that so far as amendment of the schedule of the plaint is concerned, it should be allowed. 3. AS regards the amendment of the prayer, the plaintiffs/petitioners have wanted to incorporate one addition of prayer by inserting prayer (aa) as follows: "(aa) For a decree of Declaration that the plaintiffs are the Thika Tenants in respect of Schedule A property and the defendants are Thika Tenants in respect of Schedule B property. If this prayer is allowed, I am of the view that the dispute between the parties may well be solved once for all. 4. AS regards amendment of the plaint relating to the schedule of the plaint, the Apex Court has clearly observed in the decision of Puran Ram Vs. Bhaguram and Anr. Reported in 2008(3) ICC 172 that an amendment which subserves the ultimate cause of justice and avoids further litigation, should be allowed and that amendment may be allowed even where relief sought for by way of amendment is allegedly barred by limitation. Similarly, the question of limitation, if any, arises in disposing of such an application of this nature it is observed by the Apex Court in the decision of Pankaja and anr. Vs. Yellappa (Dead) by Lrs. and ors. reported in (2004) 2 WBLR (SC) 530 that the question of limitation is to be decided at the time of trial. Amendment should be allowed with direction to frame necessary issues in this respect and to decide the same. In view of the above observations, I am of the view that the learned Trial Judge has failed to appreciate the real dispute between the parties. The order impugned cannot be sustained. It is set aside. The application for amendment of the plaint dated 15.06.2009 stands allowed. In view of the above observations, I am of the view that the learned Trial Judge has failed to appreciate the real dispute between the parties. The order impugned cannot be sustained. It is set aside. The application for amendment of the plaint dated 15.06.2009 stands allowed. The plaintiffs/petitioners are directed to file amended plaint with the learned Trial Judge within 15 days from the date of communication before the learned Trial Court. Thereafter, the learned Civil Judge (Junior Division) shall proceed in accordance with law. With such orders, this application is allowed. Considering the circumstances, there will be no order as to costs.