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2013 DIGILAW 56 (CAL)

Jaharlal Maity v. Samar Nath Giri

2013-02-01

HARISH TANDON

body2013
JUDGMENT Harish Tandon, J. 1. This revisional application is directed against Order No. 64 dated August 03, 2009 passed by Civil Judge (Junior Division), Haldia in Title Suit No. 67 of 1993 by which an application for amendment of the plaint is allowed. The plaintiff/opposite party No. 1 filed the aforesaid suit for declaration of his title and permanent injunction with further declaration that the ex parte decree passed in Title Suit No. 2 of 1978 is fraudulent, illegal and without jurisdiction and, therefore, is not binding upon the said plaintiff. 2. At the time of institution of the said suit, the plaintiff/opposite party No. 1 claimed himself to be in possession of the suit property. 3. By the proposed amendment, the plaintiff/opposite party No. 1 sought to introduce certain facts relating to the alleged dispossession during the pendency of the suit with the insertion of the prayer for recovery of possession. Indeed, the said application for amendment is taken out after a period of 16 years from the date of the institution of the suit. The Trial Court allowed the said application for amendment as the same is necessary for the purpose of determination of the controversies in the said suit and also to avoid the multiplicity of proceedings. 4. It is, however, submitted on behalf of the petitioners that such belated application for amendment should be rejected. It is further submitted that it would be apparent from the proposed amendment that the alleged dispossession took place five years before taking out an application for amendment and therefore is hit by law of Limitation and placed reliance upon a judgment of the Supreme Court in case of Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors., reported in 2009 (7) Sup 333. 5. Mr. Asish Bagchi, the learned Advocate appearing for the plaintiff/opposite party No. 1, however, submits that the proposed amendment is made because of the subsequent events and the Court must allow all the amendments in order to shorten the litigations and also to avoid the multiplicity of proceedings. He further submits that the delay cannot be a sole criteria for rejection of the amendment application, even if, the Court finds that the amendment is necessary for the purpose of determination of the controversies in the suit. Lastly, he submits that the Court must adopt a liberal approach in considering an application for amendment. 6. He further submits that the delay cannot be a sole criteria for rejection of the amendment application, even if, the Court finds that the amendment is necessary for the purpose of determination of the controversies in the suit. Lastly, he submits that the Court must adopt a liberal approach in considering an application for amendment. 6. Having considered the respective submissions, it is not in dispute that the suit is instituted in the year 1993 with the categorical averments that the plaintiff/opposite party No. 1 is in possession of the property being the subject-matter of the said suit. 7. The aforesaid possession was claimed through a licensee who according to the plaintiff was forcibly dispossessed by the petitioner during the pendency of the suit. 8. There is no quarrel to the proposition of law that the Court must take note of the subsequent events which are material for the purpose of determination of the rights of the parties in the suit and also to minimize the litigations. 9. Article 65 of the Limitation Act provides a period of limitation for recovery of possession on forcible dispossession to be 12 years from the date of dispossession and, therefore, the proposed amendment cannot be said to be barred by limitation as tried to be contended by the petitioners. 10. The petitioners though feebly took a plea that the said amendment should not be allowed after the commencement of trial in absence of any averment relating to due diligence as required under proviso to Order 6 Rule 17 of the Code of Civil Procedure. 11. Admittedly, the suit is instituted in the year 1993. Section 16 of the Civil Court (Amendment) Act, 2002 clearly provides that the provision of Rules 5, 15, 16 & 18 of Order 6 shall not apply to in respect of any pleading filed before the commencement of the said Amendment Act. 12. Therefore, there is no hesitation in coming to the conclusion that the present application for amendment is not hit by the said proviso. 13. This Court is not unmindful of the fact that a considerable delay is made in taking out the said application and, therefore, the defendants/petitioners should be compensated in monetary terms. 14. On perusal of the impugned order, this Court finds that the Trial Court has amended the said application, subject to payment of paltry sum of Rs. 75/-. 13. This Court is not unmindful of the fact that a considerable delay is made in taking out the said application and, therefore, the defendants/petitioners should be compensated in monetary terms. 14. On perusal of the impugned order, this Court finds that the Trial Court has amended the said application, subject to payment of paltry sum of Rs. 75/-. This Court feels that such costs should be enhanced. 15. The plaintiff/opposite party No. 1 is thus directed to pay the costs for filing the said application for amendment, assessed at 100 G.M. Such costs shall be paid within one week from date to the learned Advocate appearing for the defendants/petitioners before this Court, who, in turn, shall grant valid receipt for such sum which shall be deposited by the plaintiff/opposite party No. 1 before the Trial Court. 16. Because of the pendency of the revision application and more particularly by virtue of an order of stay granted in this revisional application, the time for filing the amended plaint is extended for a further period of two weeks from date. 17. The defendants/petitioners are permitted to file the additional written statement within two weeks from the date of service of the copy of the amendment plaint. 18. The Trial Court is directed to frame a change issue in view of the proposed amendment forthwith upon submission of the additional written statement by the defendants/petitioners. 19. The Trial Court is requested to make all endeavour to dispose of the said suit as expeditiously as possible without granting unnecessary adjournments to either of the parties and preferably within six months from the date of the communication of this order. 20. The Revisional Application is thus disposed of. 21. However, there shall be no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.