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Calcutta High Court · body

2015 DIGILAW 912 (CAL)

Nemai Chanrda Basuri v. Chandra Mohan Ghosh

2015-11-19

HARISH TANDON

body2015
JUDGMENT : Harish Tandon, J. An application for amendment of the plaint taken out at the stage of trial is rejected by the Trial Court though not on the ground that in there no sufficient explanation on due diligence. 2. Admittedly, the suit was instituted in the year 2009 and, therefore, the proviso inserted to Order 6, Rule 17 of the Code of Civil Procedure has its fullest applicability. 3. The plaintiff/petitioner filed a suit for partition and separation of shares. The suit went on trial and in course of the cross-examination, the application for amendment was taken out for incorporating certain averments relatable to a relief in the form of recovery of possession. The explanation offered in the said application is that in course of evidence it transpires that the defendants claimed the possession and, therefore, it becomes necessary to claim the recovery of possession. 4. The defendants were all along claiming the possession in respect of suit premises so the plaintiff. Though in there no absolute embargo created by introducing proviso to Order 6, Rule 17 of the Code to allow the amendment application taken out after the commencement of trial, but a further duty is cast upon the Court to satisfy itself that the petitioner could not take out the said application despite due diligence before the trial commences. 5. The proviso appended to an enabling provision controls the same and it cannot be construed that it is to be overlooked in the event the Court ultimately found that the amendment is necessary. The Court must record the satisfaction on due diligence as absence thereof may disentitle the party applying for amendment to amend the pleading. 6. The explanation given in the said application for amendment is so vague that it cannot be brought within the purview of the proviso to Order 6, Rule 17 of the Code. in there no explanation far to speak of sufficient explanation given in the said application warranting interference by the Court to permit the parties to amend their pleadings. 7. This Court, therefore, finds that the application for amendment is bereft of any such explanation. The ultimate decision of the Trial Court in rejecting such application cannot be faulted with. 8. The revisional application, therefore, fails. 9. There shall, however, be no order as to costs.