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2011 DIGILAW 1117 (CAL)

Parul Rani Debi v. Ashoke Kumar Chatterjee

2011-08-17

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiffs and is directed against the Order No.53 dated February 9, 2009 passed by the learned Civil Judge (Junior Division), Kalna in Title Suit No.266 of 1999 thereby rejecting an application for amendment of the plaint. The plaintiffs instituted a suit being Title Suit No.266 of 1999 praying for a decree for declaration of 16 annas title of the plaintiffs in the suit property, decree for permanent injunction and other reliefs. The suit property has been described in two schedules as Schedule ‘A’ and Schedule ‘B’. Schedule ‘B’ is the part of Schedule ‘A’ with respect to the plot no.65. The defendants are contesting the said suit by filing a written statement denying the material allegations raised in the plaint and the said suit is at the stage of discovery, inspection, etc. At that stage, the plaintiffs filed an application for amendment of the plaint dated May 8, 2003 and the defendants are contesting the said application for amendment of the plaint. That application was rejected on contest. Being aggrieved, this application has been preferred. Now, the question is whether the learned Trial Judge has justified in rejecting the application for amendment of the plaint. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that at the time of amendment of the plaint, the plaintiffs wanted to incorporate three more schedules as Schedule ‘B1’, Schedule ‘D’ and Schedule ‘E’ of which Schedule ‘B1’ and Schedule ‘D’ relate to different portions of the plots in suit upon which the plaintiffs claimed the recovery of possession and the Schedule ‘E’ relates to a deed of 1974. It may be pointed out herein that before the proposed amendment, the plaintiff had filed an application for amendment of the plaint dated January 9, 2003, that is, a few days prior to the date May 8, 2003, meaning thereby, four months before the date of filing of the subsequent application for amendment of the plaint. That earlier application dated January 9, 2003 was allowed on contest with costs. That earlier application dated January 9, 2003 was allowed on contest with costs. Now, as regards to the subsequent application for amendment dated May 8, 2003, I find that the plaintiffs intended to incorporate several facts including change of schedule contending forcible occupation of some other portions of the plots in suit and consequently, the prayer for amendment of the prayer of the plaint. The change of the valuation of the suit was also sought for by the intended amendment. I have already described what prayers were sought for in the original suit by the plaintiffs. By the proposed amendment, the plaintiffs have wanted to seek for relief for declaration, recovery of possession, mesne profits etc. in the suit. The plaintiffs have contended that these are of subsequent events and as such, such amendment was not sought for earlier. At the time of filing the earlier application for amendment of the plaint datedJanuary 9, 2003, such proposed amendment was not sought for meaning thereby that before January 9, 2003, no such incident did not take place. So far as the reliefs mentioned in the proposed amendment as appearing at page no.22, for proper appropriation the prayers are quoted below:- (h) That a decree for declaration to the effect that the plaintiff Nos.1 + 4 by virtue of the (E) schedule sale deeds had acquired right, title and interest in (A) Schedule properties and the Mouza in that deed had been wrongly written as “Chak- Raghupur” in place of “Chak-Basupur”. (i) That a decree for recovery of Khas possession of the (D) and (B1) Schedule properties be passed in favour of the plaintiffs and against the defendant Nos.1 to 3 and defendant No.3 respectively. (j) That a decree for Rs.10/- as tentative profits may kindly be passed in favour of the plaintiffs on a finding that the plaintiffs will be entitled to get a full decree after ascertainment of the same on payment of usual Court Fees. If the prayer ‘H’ which relates to the Schedule ‘E’ appearing at page no.24 is considered, it would appear that this prayer relates to the registered sale-deed of the year 1974, that is, long before filing of the instant suit. Therefore, this prayer cannot be described as an event subsequent to the filing of the suit and this is not subsequent event at all with regard to the matter in dispute. Therefore, this prayer cannot be described as an event subsequent to the filing of the suit and this is not subsequent event at all with regard to the matter in dispute. So, this prayer cannot be described as subsequent event at all and the proposed amendment to the effect cannot be granted. So far as the other two reliefs, that is, for recovery of possession and consequently mesne profits in respect of the properties as described in Schedule ‘B’ and Schedule ‘B1’ are concerned, I find that the plaintiffs described the fact that after filing of the suit, they were dispossessed from such schedule of the properties. If those two schedules as appearing at page no.23 were perused, it would appear that it is not at all in clear terms and as such, the same is vague. If any decrees obtained on such vague prayer, the complication is likely to occur in future, particularly at the time of execution of the decree, if any decrees obtained on the basis of such vague schedule of the plaint. So far as the amendment of the plaint with regard to the subsequent facts are concerned, I find that the plaintiffs did not state any date when they had been dispossessed from the proposed Schedule ‘B1’ and Schedule ‘D’ property. Since, there was no indication about such fact in their earlier application for amendment of the plaint dated January 9, 2003 and the amendment in question was sought for only on May 8, 2003. It is executed that such alleged dispossession had taken place within this short gap period. Mr. Sujash Ghosh Dastidar appearing on behalf of the petitioner has contended that his client is residing in Nadia whereas the suit property is situated at Burdwan and the parties are related, the plaintiffs were unaware of the date of dispossession and as such no date of dispossession had been mentioned. This contention, I hold, cannot be expected. If the exact is not possible, the plaintiffs could have described the date of dispossession at least by month or saying the date sometime after January 9, 2003 when the earlier application for amendment was sought for. This being the position, I am of the view that the learned Trial Judge is perfectly justified in rejecting the application for amendment of the plaint. This being the position, I am of the view that the learned Trial Judge is perfectly justified in rejecting the application for amendment of the plaint. Moreover, if the proposed amendment as appearing as Annexure ‘B’ at page no.20 is perused, it would appear that all the facts necessary for incorporation by way of amendment have been sought for by a compact paragraph, incorporating many facts and the language is not clear and explicit. In that context, the application for amendment having not been made parawise mentioning different facts in different paragraphs cannot be entertained at all. So far as amendment of the wrong recording of mouja of Chak-Basupur in place of Chak-Raghupur or Chak-Rasupur appearing in the deeds appears to be a formal defect could have been allowed, had it been mentioned by a separate paragraph in the proposed amendment but because of the compact paragraph as described above, I am of the view, this portion cannot be segregated from the rest portion and it cannot be allowed in part of the application for amendment. However, since this portion of the amendment is most formal, the plaintiffs is hereby given liberty to file an appropriate application within 15 days from the date of communication of this order to the learned Trial Judge to that effect and if no application is filed to that effect within the aforesaid period, the matter shall be treated by the learned Trial Judge as a closed chapter. So far as inclusion of the name of one Arun Kumar Mukhopadhyay @ Botu Mukherjee as the defendant no.5, as I find that his father, Sudhangshu Kumar Mukhopadhyay (since deceased) was not at all a party to the suit. There is no other proforma defendant nos.1 to 4. So, Shri Arun Kumar Mukhopadhyay cannot be added as proforma defendant no.5. Moreover, the plaintiffs did not state any cause of action in respect of such Arun Kumar Mukhopadhyay and the defendant no.5 as per plaint is the State of West Bengal represented by the Collector, Burdwan. In that view of the matter, I am of the opinion that the application for amendment of the plaint had been prepared in such a form which is liable to be rejected summarily. The learned Trial Judge has rightly rejected the said application for amendment of the plaint subject to the observations as made above. In that view of the matter, I am of the opinion that the application for amendment of the plaint had been prepared in such a form which is liable to be rejected summarily. The learned Trial Judge has rightly rejected the said application for amendment of the plaint subject to the observations as made above. This application is, therefore, disposed of in the manner indicated above and the impugned order is supported subject to the modification as indicated above. Considering the circumstances, there will be no order as to costs.