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2014 DIGILAW 193 (CAL)

Gopal Halder v. Balai @ Hrishikesh Halder

2014-03-07

TAPASH MOOKHERJEE

body2014
Judgment : The present revisional application is directed against the order No.111, dated 14th March, 2011 passed by the learned Civil Judge (Junior Division), 2nd Additional Court at Diamond Harbour in Title Suit No.76 of 2010 allowing thereby the Plaintiff's prayer for amendment of the Plaint. The suit in the Trial Court was a suit for declaration of title and permanent injunction. The present Petitioners are the Defendant Nos.6, 8, 9 and an added Defendant and the present Opposite Party No.1 is the Plaintiff in the suit. Learned advocate for the Petitioners/Defendant Nos.6, 8, 9 and an added Defendant submits that the Plaintiff's/Opposite Party No.1's case in the plaint was that the Plaintiff/Opposite Party No.1 was all along in possession of the 'Kha' scheduled suit property; whereas it was the specific case of the Defendant Nos.6, 8, 9 and an added Defendant that they were in physical possession of the 'Kha' scheduled suit property and it was only when a local inspection was held in the suit property by the order of the Trial Court and it came out during such local inspection that the Plaintiff/Opposite Party No.1 was not in possession of the 'Kha' scheduled suit property, the Plaintiff/Opposite Party No.1 submitted the application for amendment of the plaint to include a new fact that the plaintiff/Opposite Party No.1 had been illegally dispossessed from the 'Kha' scheduled suit property during the pendency of the suit. Learned advocate for the Petitioners/Defendant Nos.6, 8, 9 and an added Defendant further submitted that the prayer for amendment of plaint was illegal and mala fide one aimed to take away the rights already accrued to the/Defendant Nos.6, 8, 9 and an added Defendant and as such, learned Trial Court was wrong to allow such illegal prayer for amendment of the plaint. Learned advocate for the Petitioners/Defendant Nos.6, 8, 9 and an added Defendant submitted a decision reported in 2002 (2) CLJ 173 . On the other hand, learned advocate for the Opposite Party No.1/Plaintiff submits that the amendment proposed was very much necessary for the proper and complete adjudication of the case and such, an amendment can be allowed at any stage of the suit. So, the learned Trial Court has rightly allowed the prayer for amendment of the plaint. Admittedly, the Civil Court has a very wide power and discretion to allow amendment of pleadings. So, the learned Trial Court has rightly allowed the prayer for amendment of the plaint. Admittedly, the Civil Court has a very wide power and discretion to allow amendment of pleadings. But, the main criterion for allowing an amendment is to consider whether the amendment is necessary for the proper adjudication of the disputes between the parties. In the present case by the proposed amendment the Opposite Party No.1/Plaintiff wanted to say that he had been illegally dispossessed from the 'Kha' scheduled suit property during the pendency of the suit and as such, he prayed for recovery of his khas possession over the said suit property. There was a local inspection of the suit property by an Advocate as an Inspection Commissioner appointed by the Court and in the Report of that inspection certain facts relating to the possession of the 'Kha' scheduled suit property have been suggested. There can never be any local inspection of any suit property to decide who is in actual physical possession of the suit property, as because such a matter has to be decided by the Court itself after considering the evidence adduced on the point by both the Parties. So, if there is any observation of the learned Inspection Commissioner, regarding the possession of the disputed property, I am in doubt, whether such an observation is right or not. Be that as it may, the point would be definitely decided by the learned Trial Court. Mere saying certain facts in the pleadings themselves do not prove the case of any of the parties. A case is always proved on the basis of the evidence tendered. So, the fact that the Opposite Party No.1/Plaintiff by amendment included the fact in the plaint that he had been illegally dispossessed from a part of the suit property during pendency of the suit itself, will not prove such contention of the Opposite Party No.1/Plaintiff. The matter is still open to both the parties to prove by evidence the incident of possession involved. So, there is no question of depriving the Petitioners/Defendant Nos.6, 8, 9 and an added Defendant of any indefeasible right accrued, if any, from the report of the learned Inspection Commissioner. In the case of Ganapati Apartments Pvt. Ltd. Vs. The matter is still open to both the parties to prove by evidence the incident of possession involved. So, there is no question of depriving the Petitioners/Defendant Nos.6, 8, 9 and an added Defendant of any indefeasible right accrued, if any, from the report of the learned Inspection Commissioner. In the case of Ganapati Apartments Pvt. Ltd. Vs. Favourite Small Investment Ltd., reported in 2002 (2) CLJ 173 and cited by the learned advocate for the Petitioners/Defendant Nos.6, 8, 9 and an added Defendant, a time barred claim was involved and the amendment proposed was not in consistent with the facts in the existing pleadings. There is no such point involves in the present case and as such, the decision has no application in the present case. The fact, intended to be introduced by the amendment, was a fact very much relevant to the other facts in issue, in the suit and hence, such amendment appears to be necessary also for the complete and final adjudication of the suit. The claim raised by the amendment is not barred by limitation also. No illegality is, therefore, found in the order of the learned Trial Court. The present Revisional Application is, therefore, rejected on contest. The Order No.111, dated 14th March, 2011 passed by the learned Civil Judge (Junior Division), 2nd Additional Court at Diamond Harbour in Title Suit No.76 of 2010 is hereby affirmed. The Petitioners/Defendant Nos.6, 8, 9 and an added Defendant be given an opportunity by the learned Trial Court to file additional written statement, if any. The Revisional Application, being C. O. No.2281 of 2011, is accordingly disposed of. There shall be no order as to costs.