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2012 DIGILAW 238 (CAL)

CLS Limited v. Ashok Jatia

2012-03-21

SOUMEN SEN

body2012
JUDGMENT : Soumen Sen, J. The order rejecting an application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure is the subject matter of challenge in this revisional application. The reason for rejecting the application, in short, was that the plaintiffs applied for amendment after commencement of trial and at the stage of argument. The defendants concluded their argument and the plaintiffs were also about to conclude their argument. The plaintiffs became aware of the actual measurement of the suit scheduled property after the written statement was filed and even at the stage of cross-examination of D.W.1 but did not exercise due diligence to amend the measurement of the suit schedule and the petition was filed at a much belated stage. 2. The plaintiffs in the suit prayed for declaration that the plaintiff no. 1 is still continuing as a monthly tenant in respect of an area of 4415 Sq. Ft. at the 1st floor of Premises no. 1A, Janki Shah Road, P.S. Hastings, Calcutta-22 along with other reliefs in the nature of permanent and mandatory injunction. 3. The plaintiff no. 1 in the suit claims to be tenant under the defendant nos. 2 to 7. It was alleged that on the basis of some amicable arrangement the plaintiff no. 1 agreed to surrender the said tenanted partition on an express understanding that the plaintiffs would be accommodated in the newly constructed building with more or less the same area which they were in occupation prior to vacating the said premises. 4. The defendants filed the written statement in August, 2007 in which dealing with the allegations made in paragraph 26 of the plaint the said defendants alleged as follows:- "26. With reference to paragraph 19 and 20 of the plaint this defendant denies and disputes the statements made therein and put the plaintiffs to strict proof thereof. After surrendering the tenancy right plaintiff No. 1 has no interest at premises No. 1A, Janki Shah Road P.S. Hastings, Kolkata- 700 022 and the same would be corroborated from the minutes of the meeting of the directors of the plaintiff No.1 held on 31st August, 2005. After surrendering the tenancy right plaintiff No. 1 has no interest at premises No. 1A, Janki Shah Road P.S. Hastings, Kolkata- 700 022 and the same would be corroborated from the minutes of the meeting of the directors of the plaintiff No.1 held on 31st August, 2005. Plaintiff No. 1 has no right, title and interest at premises No. 1A, Janaki Shah Road P.S. Hastings, Kolkata- 700 022 and as such question of depriving the plaintiff No. 1 of its legitimate right of tenancy of an area of 4415 square feet does not and cannot arise at all. After demolishing the old building new building has come up and first floor of the new building comprises approximately of 3200 sq. ft. only. Plaintiffs have not mentioned the suit property properly for which suit should be dismissed with costs." 5. Thereafter the suit proceeded and there is no dispute with regard to the fact that the trial had commenced and almost concluded. The suit is at the stage of argument. 6. The defendants submit that they have concluded their arguments and the plaintiffs were to give reply. It was at this stage of the plaintiffs filed an application under Order 6, Rule 17 of the C.P.C. on the ground that in course of argument, the plaintiffs for the first time became aware of the fact that the entire first floor of the newly constructed building does not consist of 4415 Sq. Ft. (as it was in the previous building) but as per the sanction plan the existing 1st floor is having an area of 3200 Sq. Ft. 7. It was in view of the contention raised by the defendants that even if a decree is passed, the same could not be executed by reason of mis-description of the suit property, such amendment became necessary. The defendants filed written objection and contended that such fact was known to the plaintiffs even before the commencement of the trial and the application is required to be dismissed since it lacks bona fide. The plaintiffs in their reply, however, made an overturn and tried to improve upon the statement initially made in paragraph no.3 to the said application for amendment and this time they contended that due to oversight and/or bona fide mistake they erroneously claimed should have 4415 Sq. Ft. instead of 3200 Sq. Ft. 8. The plaintiffs in their reply, however, made an overturn and tried to improve upon the statement initially made in paragraph no.3 to the said application for amendment and this time they contended that due to oversight and/or bona fide mistake they erroneously claimed should have 4415 Sq. Ft. instead of 3200 Sq. Ft. 8. It was further contended that after getting the written notes of argument submitted by the defendants the plaintiffs verified the same by an architect engineer who confirmed that the area consisting of the entire 1st floor is 3200 Sq. Ft. and not 4415 Sq. Ft. The defendants, to this, would, however, urge that the plaintiffs themselves averred in the plaint about a sanction plan and any discreet enquiry would have shown that the plaintiffs if at all entitled to any area that should be confined to 3200 Sq. Ft. and not 4415 Sq. Ft. 9. With these rival pleadings the matter was heard by the learned Civil Judge. The only consideration on the basis of which the said application was dismissed is that the plaintiffs did not act with due diligence and, in fact, acted negligently in applying for amendment of the plaint. 10. Mr. Bidyut Kr. Banerjee, learned senior counsel on behalf of the petitioners submits that the learned Court below has completely misdirected his mind and acted illegally and with material irregularity in refusing to allow the amendment of the plaint since such amendment is necessary to determine the real controversy in the suit and in this regard he has relied upon a decision reported in AIR 2006 SC 1647 (Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors.). 11. Mr. Banerjee submits that the real controversy in the suit is a declaratory relief in respect of an area which the plaintiffs initially under misconception mentioned it as 4415 Sq. Ft. instead of 3200 Sq. Ft. Even if a decree is passed on the basis of the unamended schedule the same would create an unnecessary complication and if the suit ultimately succeeds there might be difficulty in implementing the said decree. There is no confusion with regard to identity of the suit property and the only amendment sought for is to correct the measurement of the scheduled property. There is no confusion with regard to identity of the suit property and the only amendment sought for is to correct the measurement of the scheduled property. It was further submitted that this amendment would not prejudice the trial since the defendants themselves have contended that the area in the newly constructed building in the 1st floor is not 4415 Sq. Ft. but 3200 Sq. Ft. which is in the nature of an admission and the plaintiff only seeks to bring on record by way of amendment such actual measurement so that the schedule to the property would give a proper description of the area to which the plaintiffs would be entitled in the event the suit is decreed in favour of the plaintiff. 12. Per contra, Mr. Tiwari, learned counsel appearing on behalf of the opposite parties submits that the learned Chief Judge, City Civil Court, Calcutta after taking into consideration the amendment introduced in 2012 to Order 6, Rule 17 of the C.P.C. rightly rejected the said application for amendment. It was submitted that the plaintiffs were aware of the fact that in any event they would not be entitled to an area of 4415 Sq. Ft. in the newly constructed area and, in fact, the said fact was clearly indicated in the written statement. The sanction plan would clearly show that the final plan is only having an area of 3200 Sq. Ft. and even if the plaintiff succeeds they would be entitled to 3200 Sq. Ft. and not 4415 as alleged in the plaint. 13. Mr. Tiwari further submitted that in deciding an application for amendment the Court cannot lost sight of the fact that the party approaching the Court for amendment of the pleading must exercise due diligence and a distinction is drawn between the degree of prejudice likely to be caused in pre-trial amendment and post-trial amendment and more particularly, after commencement of trial. In this regard he has relied upon the decision reported in (2008) 14 SCC 364 (Rajkumar Gurawara (Dead) Through Lrs. v. S.K. Sarwagi And Company Private Limited And Another). On the aspect of due diligence Mr. In this regard he has relied upon the decision reported in (2008) 14 SCC 364 (Rajkumar Gurawara (Dead) Through Lrs. v. S.K. Sarwagi And Company Private Limited And Another). On the aspect of due diligence Mr. Tiwari has relied upon a decision of the Hon'ble Supreme Court reported in (2008) 5 SCC 117 (Chander Kanta Bansal v. Rajinder Singh Anand) and a recent decision of a learned Single Judge of this Hon'ble Court reported in 2012(1) CHN (Cal) 297 (Kiran Bala Biswas v. Pradip Biswas). 14. In the Rajkumar's case the appellant/plaintiff filed a suit for declaration of his exclusive right to do mining operations in the suit property. It appears that subsequent thereto a new party was added and after closing of the evidence and during the course of argument the plaintiff filed an application under Order 6, Rule 17 read with Section 151 of the C.P.C. for amendment of the plaint praying for possession over the plaint schedule mentioned property from the defendants and for grant of damages of Rs. 5 lakhs in favour of the plaintiff for their mining operations without consent of the plaintiff in the plaint schedule property. 15. It is in this background the Hon'ble Supreme Court considered the merits of the application and held that the said application is required to be dismissed for the reasons mentioned in paragraph 18 of the said report which is reproduced herein below:- "18. Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6, Rule 17 but even on merits his claim is liable to be rejected. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6, Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10-03-2004 of the Additional District Judge." 16. It would appear from the said decision that the Hon'ble Supreme Court has laid down three conditions which are required to be taken into consideration for deciding such an application. 17. In Chander Kanta Bansal's case, the Hon'ble Supreme Court considered the meaning of the words "due diligence" as appearing in the amended proviso to Order 6, Rule 17 of the C.P.C. It was held to mean that it should be a careful and persistent application or effort and one must be careful and steady in application to one's work and duty. The said word "due diligence" was considered in paragraph 16 of the report which is reproduced herein below:- "16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspena (Permanent Edn. 13-A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs." 18. In the said decision, it appears that in the year 1986 the respondent filed a suit for mandatory injunction alleging that the drive way which 10' wide from gate facing 30' road up to the road facing 15' wide service lane at the back, has been encroached upon by the appellant and the appellant was not permitting him to use the drive way. Written statement was filed and the witnesses were examined. 19. Written statement was filed and the witnesses were examined. 19. It was almost after 18 years an application was filed by the appellant for amendment of the written agreement, and sought the permission of the Court to file a written agreement executed between the parties on September 10, 1982. The respondent filed a reply to the application denying the execution of the agreement and claimed that the same is forged and fabricated document. The trial Court after hearing the arguments allowed the amendment on November 18, 2004 and the said order, ultimately reached the Hon'ble Supreme Court on a special leave petition for consideration. 20. The principal argument put forwarded by the plaintiff was that the trial had been completed and after the final arguments when the defendant came to know that she would be losing her case she had changed her stance by filing an application for amendment of the written statement. It was further alleged that the agreement/petition dated September 10, 1982 which itself is not admissible in the eye of law since it is a forged document and on the basis of the said document, the proposed amendment could not be allowed. 21. The learned Civil Judge allowed the amendment after going through the materials on record. The Hon'ble High Court, however, set aside the order of the learned trial Court and rejected the application filed by the defendant to amend the written statement. In deciding the said application, the Hon'ble Supreme Court had taken into consideration the changes brought about by the amendment of 2002 to the C.P.C. and noticed that the proviso limits the power to allow the amendment after the commencement of trial but grants discretion to the Court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. The Hon'ble Supreme Court observed as follows:- "11. In order to find out whether the application of the defendant under Order 6, Rule 17 for amendment of written statement is bona fide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC Order 6, Rule 17 reads thus: "17. Amendment of pleadings. The Hon'ble Supreme Court observed as follows:- "11. In order to find out whether the application of the defendant under Order 6, Rule 17 for amendment of written statement is bona fide and sustainable at this stage or not, it is useful to refer to the relevant provisions of CPC Order 6, Rule 17 reads thus: "17. Amendment of pleadings. - The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." This Rule was omitted by the Code of Civil Procedure (Amendment) Act, 1999. However, before the enforcement of the Code of Civil Procedure (Amendment) Act, 1999, the original rule was substituted and restored with an additional proviso. The proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that they party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally after the character of an action should be granted, which care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party under pretence of amendment." 22. The reasons for disagreeing with the trial Court and upholding the order of the Hon'ble High Court appears in paragraph 19 of the said report which is reproduced herein below:- "19. As observed earlier, the suit filed in the year 1986 is for a right of passage between two portions of the same property dragged for a period of 21 years. As observed earlier, the suit filed in the year 1986 is for a right of passage between two portions of the same property dragged for a period of 21 years. In spite of long delay, if acceptable materials/materials placed before the Court show that the delay was beyond their control or diligence, if would be possible for the court to consider the same by compensating the other side by awarding costs. As pointed out earlier, when she gave evidence as D.W.1, there was no whisper about the written document/partition between the parties. On the other hand, she asserted that partition was oral. Now by filing the said application, she wants to retract what she pleaded in the written statement, undoubtedly it would deprive the claim of the plaintiff. We are also satisfied that she failed to substantiate inordinate delay in filing the application that too after closing of evidence and arguments. All these aspects have been considered by the High Court. We do not find any ground for interference in the order of the High Court, on the other hand, we are in entire agreement with the same." 23. In Ratan Fadikar's case(Supra), it appears that the suit was instituted on March 12, 2007 in which a prayer was made for declaration that a purported sale Deed dated March 15, 2004 executed by the plaintiff in favour of the defendant/petitioner (hereinafter the defendant) is void, illegal, inoperative and for a decree of permanent injunction restraining the defendant from creating any disturbance to the peaceful possession of the suit property. The original plaintiff expired on March 20, 2007 and thereafter the legal heirs were brought on record. The defendant appeared and filed the written statement on February 29, 2008. At the stage of recording evidence of witness on behalf of the plaintiff, the defendant filed an application under Order 6, Rule 17 of the C.P.C. on May 20, 2009 for incorporating amendment in his written statement whereby he intended to set up certain counter claims. The reason for such amendment was that at the time of initial drafting of the written statement the same was done in hot haste and certain facts were not examined or overlooked. It was only at the time of consultation such omission was noticed necessitating the application for amendment and incorporation of certain facts constituting counter claims. The reason for such amendment was that at the time of initial drafting of the written statement the same was done in hot haste and certain facts were not examined or overlooked. It was only at the time of consultation such omission was noticed necessitating the application for amendment and incorporation of certain facts constituting counter claims. On February 17, 2010 the plaintiff also filed an application under Order 6, Rule 17 for amendment of the plaint. The learned trial Judge by an order dated April 1, 2010 allowed both the applications. The defendant did not challenge the order allowing the amendment of plaint. However, the plaintiff challenged the order allowing the amendment of the written statement in its revisional application filed before this Court. In the said application, order was passed on November 29, 2010 allowing such revisional application by setting aside the order under challenge. 24. A finding was recorded in the said order that the defendant had failed to furnish any explanation as to why he could not apply for amendment of written statement before commencement of trial of the suit. The observation made by the learned single Judge while remanding the matter was that "in view of the proviso added to Order 6, Rule 17 of the C.P.C., even a meritorious application cannot be allowed unless a Court is satisfied that in spite due diligence the defendant could not have raised the said matter before commencement of trial." 25. Liberty was granted to the defendant to file a supplementary affidavit disclosing the reason and the learned trial Court was directed to reconsider the application of the defendant in the light of the observations made in the said order. The defendant filed a supplementary affidavit and thereafter the matter was considered by the learned Judge. On such fresh consideration, the application for amendment of the written statement was disallowed by an order dated January 11, 2011. The merit of the said order was under consideration before the learned single Judge in the said revisional application. 26. The defendant filed a supplementary affidavit and thereafter the matter was considered by the learned Judge. On such fresh consideration, the application for amendment of the written statement was disallowed by an order dated January 11, 2011. The merit of the said order was under consideration before the learned single Judge in the said revisional application. 26. In the said application the learned single Judge was considering the ingredients of certain facts constituting counter-claims under Order 8, Rule 6A of the C.P.C. and it was held that refusal to entertain a counter-claim would not prejudice the defendant since he would be always at liberty to institute a suit based on the cause of action on which he intended to set up the counter-claim. It was held that the applicant's delayed prayer for amendment of pleadings after commencement of trial in order to succeed must be convincing enough for the learned trial Judge to rule in his favour. The learned single Judge on facts found that the defendant could not furnish even a plausible explanation for allowing such amendment and accordingly upheld the order of the learned trial Court by which the amendment of the written statement was disallowed. It was held that amendment of pleading after commencement of trial was on the ground that such an order would present multiplicity of proceedings cannot be made if the condition precedent is not satisfied, that is, the Court must come to a conclusion that in spite of due diligence, the applicant could not have raised the matter before commencement of trial. 27. In Rajesh Kumar Aggarwal's case, the Hon'ble Supreme Court held that the object of the rule is that courts should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided, it does not cause injustice or prejudice to the other side. The Hon'ble Supreme Court construed the scope of the amended Order 6, Rule 17 of the C.P.C. and held as follows:- "15. This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. This rule declares that the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just. It also states that such amendments should be necessary for the purpose of determining the real question in controversy between the parties. The provision enacts that no application for amendment should be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the part could not have raised the matter for which amendment is sought before the commencement of the trial. 16. The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. 17. Order 6, Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. 18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit. 19. As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. If it is, the amendment will be allowed; if it is not, the amendment will be refused. On the contrary, the learned Judges of the High Court without deciding whether such an amendment is necessary has expressed certain opinion and entered into a discussion on merits of the amendment. In cases like this, the Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard rights of both parties and to sub-serve the ends of justice. It is settled by catena of decisions of this Court that the rule of amendment is essentially a rule of justice, equity and good conscience and the power of amendment should be exercised in the larger interest of doing full and complete justice to the parties before the Court. 20. While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not be adjudged at the stage of allowing the prayer for amendment. This cardinal principle has not been followed by the High Court in the instant case." In my respectful reading of all the decisions, it appears that normally the Court should not permit such amendment after commencement of trial if it causes or likely to cause injustice or prejudice to the other side, which might be in the form of a withdrawal of the admission or inconsistency with the case originally made out or introducing a new case based on a new cause of action. The Hon'ble Supreme Court in a fairly recent decision reported in 2009(10) SCC 84 (Revajeetu Builders & Developers v. Narayanaswamy & Sons & Ors.) had the occasion to consider the scope of amended provision of Order 6, Rule 17 of the C.P.C. In the said decision, the Apex Court laid down some guidelines for exercising the discretionary power of the trial Court in granting such amendment in Paragraphs 63 and 64 of the said report which are reproduced herein below :- "63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6, Rule 17. These are only illustrative and not exhaustive. 64. The decision on an application made under Order 6, Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendments the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments." 28. In the same volume of the Supreme Court, there is another decision, namely, Surender Kumar Sharma v. Makhan Singh reported in 2009(10) SCC 626 wherein it was held that a belated application for amendment is not liable to be rejected merely on the ground of delay, if the Court finds that by allowing such application real controversy between the parties may be finally resolved. The nature of amendment in the instant case is such that it would not change the nature and character of the suit. It only relates to measurement of the suit premises which the plaintiff contends should be 3200 sq. ft. instead of 4415 sq. ft. as originally claimed in the plaint. The two Supreme Court decisions and the decision of the learned single Judge on this point are clearly distinguishable. It only relates to measurement of the suit premises which the plaintiff contends should be 3200 sq. ft. instead of 4415 sq. ft. as originally claimed in the plaint. The two Supreme Court decisions and the decision of the learned single Judge on this point are clearly distinguishable. In fact, this Court draws inspiration from Rajkumar Agarwal and two later Supreme Court decisions to allow such amendment and accordingly feels that the learned Court should not have taken such technical view of the matter in disallowing the amendment. 29. It is needless to mention here that first issue would be whether the plaintiff at all would be entitled to such a declaratory relief and then only comes the question of actual area which the plaintiff initially claimed as 4215 sq. ft. and now as 3200 sq. ft. if such amendment is allowed. The same is not likely to cause any prejudice to the defendant nor would it in any way take away any valuable right accrued in favour of the opposite parties. The only objection to such amendment as it appears was the lack of due diligence. While it is true that the plaintiff could have filed the application soon after 2007 and should have been more diligent in appointing an architect to find out the exact area to which the plaintiff would be entitled to the newly constructed building that would not by itself could be a ground to disallow such amendment since for the purpose of proper adjudication the Court should have proper identity of the property. Since the Court has to pass an order which is implementable. It is the duty of the Civil Court to ensure that if there is a mis-description of the property, the same should be allowed to be rectified. In the interest of justice before deciding the lis, the Court shorn of all technicalities should allow such amendment. However, the defendants are required to be compensated for such delayed approach made to the Court for amendment of the plaint as the defendants complaint that they have already completed their argument. 30. Accordingly, the plaintiffs should pay costs of Rs.7,000/- to the opposite parties within a period of two weeks from date. However, the defendants are required to be compensated for such delayed approach made to the Court for amendment of the plaint as the defendants complaint that they have already completed their argument. 30. Accordingly, the plaintiffs should pay costs of Rs.7,000/- to the opposite parties within a period of two weeks from date. Since, it is only a mis-description of the schedule property I do not feel, any further evidence in this regard would be necessary and the Court may only permit such amendment to take place in the schedule and it would be open for the opposite parties to file any additional written statement if they so desire. However, the Court should not permit any evidence to be recorded on the basis of such amendment which is likely to displace the evidence already on record or cause any prejudice in the trial or takes away any valuable right accrued in favour of the defendant. 31. Although it prima facie appears that consequent upon such amendment no further evidence need be adduced by either of the parties but in the event any such request is made, the learned Court below would consider the same in accordance with law and it would be in the absolute discretion of the learned single Judge to allow and/or disallow any such request. The learned single Judge should also keep in mind that under the garb of such amendment, the plaintiff should not be permitted to raise any new plea or to lead any evidence for the purpose of improving upon the existing evidence or withdraw any admission which is already on record. Since it is an endeavour of all Courts to see that the litigation attained its finality and to subserve the cause of justice, the instant application for amedment is allowed. It is needless to mention that the Courts are not precluded to allow an application for amendment if it appears to the Court that such amendment is necessary to put an end to all controversies between the parties and decide the lis effectively, conclusively and properly. 32. However, in the event, the cost is not paid within the stipulated time as indicated in the order, the learned trial Judge should proceed immediately with the argument and decide the matter on the basis of the existing materials on record. 33. 32. However, in the event, the cost is not paid within the stipulated time as indicated in the order, the learned trial Judge should proceed immediately with the argument and decide the matter on the basis of the existing materials on record. 33. Upon payment of the cost, the plaintiffs shall be permitted to file the amended plaint within a week from the date of payment of cost and the learned trial Court would proceed with the suit. 34. In view thereof, the revisional application succeeds. 35. There shall be no order as to costs. 36. Urgent photostat certified copy, if applied for, be given to the parties upon compliance of necessary formalities.