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2013 DIGILAW 90 (CAL)

Jharipada Karmakar v. Yudhisthir Bose

2013-02-12

Anindita Roy Saraswati

body2013
JUDGMENT : - Anindita Roy Saraswati, J. : The petitioner Jharipada Karmakar has approached before this Court by preferring the present application under article 227 of Constitution of India challenging the order dated 21st July 2011 passed by Civil Judge, Senior Division, Purulia in connection with Title Suit No. 106 of 2007 allowing thereby an application for amendment filed by the defendant/opposite party. 2. The petitioner/plaintiff initiated this Title Suit No. 106 of 2007 with a prayer for decree of specific performance of contract in respect of the scheduled land against the defendant/opposite party No. 2 and also for a decree of permanent injunction against the defendant No. 1. 3. The fact of the case of the plaintiff/petitioner is that defendant No. 2 is the owner of the scheduled property and the plaintiff was agreed to purchase the same and the consideration money was fixed at Rs. 80,000/-. Both the plaintiff and defendant No. 2 entered into an agreement for sale of the scheduled land on 12-12-2002 and defendant No. 2 executed the same after accepting the advance of Rs.30, 000/-. The defendant No. 2 again took Rs. 10,000/- from the plaintiff but failed to hand over the title deed to the plaintiff within stipulated period and failed to perform part of his contract for which the plaintiff sent a notice on 23-05-2006 by registered post with AD informing him that the plaintiff is ready and willing to purchase the same on payment balance considering money. The plaintiff further submitted that as per the term of the agreement the defendant No. 2 handed over the possession of the scheduled land to the plaintiff on the date of agreement i.e. on 12-12-2002 but the plaintiff came to know on 31-08-2007 that the defendant No. 2 transferred some portion of the scheduled land to the defendant No. 1 in 2005 with an intention to defraud the plaintiff. 4. Defendant No. 2/opposite party No. 1 has contested the said suit by filing written statement on 25/02/2010 in which he has admitted the fact of acceptance of advanced money on execution the agreement on 12-12-2002. But according to the defendant No. 2 as the plaintiff need not take any decision for execution of the Title deed on payment of balance consideration money for which the agreement became inactive and null and void. But according to the defendant No. 2 as the plaintiff need not take any decision for execution of the Title deed on payment of balance consideration money for which the agreement became inactive and null and void. Then the defendant No. 2 transferred the scheduled property to the defendant No. 1 in which he is in possession. The defendant No. 2 on 02-12-2010 filed an application for amendment under order 6 rule XVII CPC by which the defendant No. 2 wanted to incorporate the fact that the suit property belonged to one Chattrapati Bose since disease who was the father of defendant No. 2 and after his demise the defendant No. 2 along with his one brother and two sisters became the owner of the suit property. Thus, consequently the defendant No. 2 has only one-fourth share he accordingly prays for an order to include the said fact as paragraph 11 ka in the written statement. However, the plaintiff opposed the said amendment application by filing written objection. 5. After contested hearing of that application the Trial Court was pleased to allow that application with an observation that the proposed amendment of the written statement deserved to be allowed subject to payment of cost of Rs. 200/-. 6. Being aggrieved by the said order the plaintiff/petitioner preferred the present application. 7. However, it is submitted by the learned Advocate for the opposite party that the order passed by the Trial Court is quite justified and it is required to allow for the purpose of determining the real question in controversy between the parties. He also referred a case in one Nrisingh Prasad Pal Vs. Still Products Ltd. reported in AIR (1979) Supreme Court page 51, in support of his contention and submitted that there is no bar to permit the amendment of pleading so as to enable a party to raise a new plea and the courts are inclined to be more liberal in allowing the amendment of defence than that of plaint. In that situation there was no bar to allow the amendment application filed by the defendant No. 2. 8. In that situation there was no bar to allow the amendment application filed by the defendant No. 2. 8. However, learned Advocate of the petitioner submitted, on the contrary, that as per the recent amendment of provisions of Order 6 Rule XVII CPC the amendment shall not be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence the party could not have raised the matter before the commencement of trial. 9. He, further, drew my attention to the copy of the written statement wherein the defendant No. 2 himself admitted his ownership in respect of the scheduled property knowing fully well regarding his alleged status that he was only the one-fourth share holder of the same. In paragraph 10 of the W.S. defendant No. 2 further stated that he himself alone transfer the suit property to the defendant No. 1 there is no whisper in the written statement regarding the ownership of his father Chatrapati Bose, in respect of that property. He further submitted that the defendant No. 2 has admitted his sale ownership in respect of the suit property and now he is trying to withdraw the said admission and tried to introduce a new case, which is not admissible under the law. 10. Be that as it may by CPC (Amendment) 2002 a new proviso has been introduced in which it is mentioned that no application for amendment of pleading shall be allowed after the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial. In this case it appears to me that the trial of the suit has already been commenced and the plaintiff already filed his affidavit-in-chief on 10-05-2010 long before filing of the amendment application. In that case it is quite clear that the defendant/opposite party No. 2 filed the amendment application knowing fully well regarding the fact that he wanted to incorporate by way of amendment after commencement on trial. Thus, he wanted to take advantage by his own wrong. 11. But curious enough, the lower court without considering this aspect allowed the amendment application in a very casual manner without making any cogent observation. Thus, he wanted to take advantage by his own wrong. 11. But curious enough, the lower court without considering this aspect allowed the amendment application in a very casual manner without making any cogent observation. In that circumstances I have no alternative but to set aside the said order and in my view, it would be proper to sent the matter to the trial Court on remand with a direction to re-hear the said amendment application and to pass a reasoned order on basis of the observation made in the body of this judgment. I, therefore, inclined the allow this application with a further direction upon the Trial Court to dispose amendment application within one months from the date of receiving the order positively. 12. In view of the aforesaid, the present application is allowed. Urgent Xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.