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2016 DIGILAW 62 (CAL)

Noor Mohammad Sk. v. Kasem Ali Sk.

2016-01-19

SIDDHARTHA CHATTOPADHYAY

body2016
JUDGMENT : Siddhartha Chattopadhyay, J. By filing this revisional application under Article 227 of the Constitution of India, the petitioner/plaintiff wants to assail the Order No. 83 dated 24.08.2015 mainly on the ground that the learned Court below had exercised its jurisdiction illegally and with material irregularity by not appreciating the factual aspects of this case in its proper perspectives. According to him, unless and until he was allowed to deposit the cost of amendment, the proposed amendment would be rejected and he would suffer irreparable loss and injury. According to him, the learned Court below initially had given a chance to deposit the said cost but thereafter it has been withdrawn by the same Court suo-motu. 2. Learned Counsel appearing on behalf of the opposite party has contended that such submission of the plaintiff/petitioner is a sugar coated one but actually bitter materials are kept in the sugar coated capsule. He further submitted that the amendment application of the present petitioner was disallowed by the learned Court below and against the said order of amendment he had filed revisional application bearing C.O. No. 3896 of 2008. While disposing of the said application, a Co-ordinate Bench of this Court has allowed the application under certain conditions. The condition as given by the Coordinate Bench is such that the plaintiff would be permitted to carry out such amendment within a period of two weeks from date and serve a copy of such amended plaint upon the opposite parties. It would be open for the opposite parties to file any additional pleading if so advised. In the event, the plaintiff proposed to lead any evidence, consequent upon such amendment to the plaint, it should restrict to such amended portion and the plaintiff should not be permitted to canvass any other point under the garb of such amendment since the examination in chief of the plaintiff has already been concluded. 3. The defendants would be permitted to further cross-examine the plaintiff on the basis of the amended plaint. Since there are some delay in taking out the said application for amendment, the defendants are required to be compensated by costs. The plaintiff would pay a cost of Rs. 2,000/- to the defendants as a condition precedent for carrying out such amendments. Such costs is to paid within a period of two weeks from date. Since there are some delay in taking out the said application for amendment, the defendants are required to be compensated by costs. The plaintiff would pay a cost of Rs. 2,000/- to the defendants as a condition precedent for carrying out such amendments. Such costs is to paid within a period of two weeks from date. In the event such cost is not paid, the plaintiff would not be permitted to amend the said plaint and the trial would proceed without such amendment. 4. He further submitted that since the condition given by this Court has not been complied with within the stipulated time by the petitioner the last part of the ordering portion i.e. “such cost is to be paid within a period of two weeks from date. In the event such cost is not paid, the plaintiff would not be permitted to amend the said plaint and the trial will proceed without such amendment.” The order of two weeks from date signify the date of judgment i.e. from 27.06.2012. Therefore, the plaintiff/petitioner was supposed to make payment by 12th July, 2012. Admittedly, that has not been done by the plaintiff/petitioner. 5. At the time of hearing, learned Counsel appearing on behalf of the petitioner contended that learned Court below has not permitted him to deposit the cost and unless it is permitted by the Court below he is unable to deposit the same. Such submission does not lie in the mouth of the petitioner on the ground that the order was passed in connection with C.O. 3896 of 2008 in presence of both sides. When an order is passed by the High Court against the order of the Courts subordinate to it, permission from Subordinate Court is inconsequential. It seems to me that the present plaintiff/petitioner has played a trickery with this Court as well as with the Subordinate Court by not depositing the cost of amendment within the stipulated time. His plea that his prayer for depositing the said cost was allowed by the Court below in many occasions. By virtue of the order No. 83, dated 24.08.2015 learned Court below has given a clarification that due to inadvertent mistake the order of the High Court was overlooked and by the impugned order he has rectified his own wrong. His plea that his prayer for depositing the said cost was allowed by the Court below in many occasions. By virtue of the order No. 83, dated 24.08.2015 learned Court below has given a clarification that due to inadvertent mistake the order of the High Court was overlooked and by the impugned order he has rectified his own wrong. But this will not help plaintiff/petitioner because when an order was passed by the High Court in his presence, he cannot reopen it long after two years praying for time for compliance of the order of High Court. His such plea is a kind of affectation of ignorance associated with pseudo ignorance. When an order is passed by the High Court, permission for compliance from Lower Court is inconsequential. This apart, he has prayed for time before the Court below for depositing cost. There is no prayer from the present plaintiff/petitioner that he wants to deposit the cost in view of the order of the High Court within the time frame. 6. Considering all these aspects I am of the view that the petitioner/plaintiff is not fair enough. Such attitude of the truant litigant is to cause of delay in disposal of the cases and a ground for accumulation of cases in the Lower Court. In my considered view it should not be leniently taken. Accordingly, I do not find any merit in this application. Since the cost has not been paid within a period of two weeks from the date of disposal of C.O. No. 3896 of 2008, the plaintiff would not be permitted to amend the same and the trial will proceed without such amendment. 7. Let a copy of this order be sent to the respective learned Courts below for their information and taking necessary action in accordance with law. 8. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.