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2013 DIGILAW 677 (CAL)

Privthraj Agarwal v. Gopal Prosad Barui

2013-09-13

PRASENJIT MANDAL

body2013
JUDGMENT Prasenjit Mandal, J. This application is at the instance of the defendant and is directed against the Order No.129 dated August 6, 2009 passed by the learned Judge, Presidency Small Causes Court, 2nd Bench, Calcutta in Ejectment Suit No.1283 of 2000 thereby allowing an application for amendment of the plaint with costs. The plaintiffs/opposite parties herein instituted a suit being Ejectment Suit No.133 of 1996 against the defendant/petitioner herein for ejectment on the ground of reasonable requirement before the learned City Civil Court, Calcutta and the said suit was transferred to the Presidency Small Causes Court and re-numbered as Ejectment Suit No.1283 of 2000. The defendant is contesting the said suit denying the material allegations contained the plaint. The plaintiffs have adduced evidence in support of the plaint case and the P.W.s were cross-examined in details. Thereafter, on August 31, 2006, the plaintiffs/opposite parties herein filed an application for amendment of the plaint contending, inter alia, that the facts mentioned in the application are subsequent events and so, these facts are to be incorporated in the plaint. That application was allowed on contests with costs. Being aggrieved, this application has been preferred. Now, the point for consideration is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the P.W.1 tendered evidence, i.e., examination-in-chief on affidavits. The plaintiffs have wanted to incorporate by way of amendment of the plaint on the following facts, such as, the plaintiffs along with other co-sharers have a premises at 5A, Saha Lane, Calcutta which is a three storied building and the said property has not been included in the plaint and the fact that during the pendency of the suit, the youngest son of the plaintiff no.1, namely, Ajay Barui was given in marriage and in the meantime, the children of Sanjay Barui, another son of the plaintiff no.1, have grown up and the said facts are to be included in the plaint by way of amendment etc. By the proposed amendment, the plaintiffs have also wanted to incorporate that the plaintiffs obtained possession of one flat on the first floor comprising three rooms including one room without any window and a kitchen and the said flat consisting of three rooms are in occupation of the plaintiff no.2 and such fact is also to be added in the plaint by way of amendment. It may be noted herein that before filing such amendment of the plaint, the P.W.1 was cross-examined in details and such facts contended to be incorporated, have come to the Court by way of cross-examination of the P.W.1. During the cross-examination, the P.W.1 has admitted that he has not incorporated such facts in the plaint. Therefore, it is clear that such amendment has been sought for when the said facts came to light during the cross-examination of the P.W.1 and it has been proved that the examination-in-chief of the P.W.1 is far from the plaint case. Therefore, it is crystal clear that in order to cover up the said deposition and to avoid any adverse finding that may be adopted against the plaintiffs in view of such omission to mention in the plaint, but, admitted during the cross-examination. It is, therefore, evident that by the proposed amendment, the plaintiffs have wanted to regularise the deposition by way of amendment in respect of the matter which came to light during the cross-examination of the P.W.1. Therefore, it is also obvious that such application for amendment has been filed in order to avoid any mischief or adverse finding that may be drawn up by the Court for admission of the facts obtained during the cross-examination. So, from such conduct of the plaintiffs, it is very much clear that they were aware of such facts at least before the examination of the P.W.1, but, did not seek for amendment at the earlier point of time, but, when such facts have surfaced during the cross-examination. Now, they have wanted to regularise the matter which they have suppressed earlier. This is nothing but an attempt to put the cart before the horse. It also may be described as an attempt to obviate the situation which has arisen out of the cross-examination of the P.W.1. Now, they have wanted to regularise the matter which they have suppressed earlier. This is nothing but an attempt to put the cart before the horse. It also may be described as an attempt to obviate the situation which has arisen out of the cross-examination of the P.W.1. So far as existence of the premises at 5A, Saha Lane, Calcutta was very much known to the plaintiffs, but, they have suppressed such fact in the plaint. The plaintiffs have also suppressed when the son of the plaintiff no.1 was given in marriage and when the children of the son of the plaintiff no.1, namely, Sanjay Barui, became grown up. Similarly, they have suppressed the fact when they obtained possession of another flat on the first floor comprising of three rooms. So, now, they have wanted to regularise the same facts. If amendment is allowed, it relates to the back date of filing of the suit and so, the intention of the plaintiffs is very much clear why such amendment was sought for. Therefore, if the amendment is allowed at this belated stage, certainly the benefits or advantages or any favourable answers in favour of the defendant that have been obtained by way of cross-examination of the P.W.1, would be demolished by the proposed amendment. In such circumstances, if the proposed amendment is allowed, obviously, the defendant will be highly prejudiced, which cannot be compensated by money at all. Mr. Saptangshu Basu, learned Advocate appearing for the petitioner, has referred to the decisions of 2006(3) ICC 375 and (2009) 3 SCC 467 [Alkapuri Cooperative Housing Society Ltd. v. Jayantibhai Naginbhai (deceased)] and thus, has contended that facts which were very much known to the plaintiffs before the institution of the suit should not be allowed to be incorporated by way of amendment after the cross-examination of the main witness for the plaintiffs. Mr. Aniruddha Chatterjee, learned Advocate appearing for the opposite parties, has contended that the delay in filing the application for amendment of the plaint is not a ground at all particularly, when the suit was instituted in the year 1996 and the provisions of Act 22 of 2002 will not be applicable. Mr. Aniruddha Chatterjee, learned Advocate appearing for the opposite parties, has contended that the delay in filing the application for amendment of the plaint is not a ground at all particularly, when the suit was instituted in the year 1996 and the provisions of Act 22 of 2002 will not be applicable. In support of his contention, he has relied on the decision of Surender Kumar Sharma v. Makhan Singh reported in (2009) 10 SCC 626 and thus, he has submitted that the delay does not matter in considering the prayer for amendment of the plaint provided the opposite party can be compensated by costs. He has also referred to the decision of Sm. Bedana Devi & anr. v. Abdul Jawab reported in 91 CWN 226 and thus, he has contended that the amendment relating to subsequent events should be allowed and the plaintiff’s change in requirement can be noted even at the appellate stage and so, the learned Trial Judge has rightly allowed the application for amendment of the plaint. With due respect to Mr. Chatterjee, I am of the view that in consideration of the situation and the fact that the proposed amendment does not at all relate to post filing the suit, the learned Trial Judge is not justified at all to allow the application for amendment of the plaint. In my view, the learned Trial Judge has failed to address the issue properly and so, he has committed illegality and material irregularity by allowing the application for amendment of the plaint. Accordingly, the impugned order cannot be sustained. Therefore, the application is allowed. The impugned order is hereby set aside. The application dated August 31, 2006 for amendment of the plaint filed by the plaintiffs stands rejected. The learned Trial Judge is directed to proceed with the suit from that stage. He shall expedite the disposal of the suit so that the suit may be disposed of by the end of December 2013 without fail. Considering the circumstances, there will be no order as to costs.