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2018 DIGILAW 978 (CAL)

Mrityunjoy Mondal v. Arun Mondal

2018-12-17

BIBEK CHAUDHURI

body2018
JUDGMENT : BIBEK CHAUDHURI, J. 1. The instant revision under article 227 of the constitution of India is directed against an order dated 12th May, 2016 passed by the learned Civil Judge (Junior Division), 2nd Court at Baruipur in Title Suit No.113 of 2013. The order impugned is an order of rejection of an application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of plaint. 2. For proper appreciation of the matter, the following facts are required to be recorded:- 3. The petitioners instituted a suit for declaration of title and for permanent injunction in the 2nd Court of learned Civil Judge (Junior Division), at Baruipur which was registered as Title Suit No. 113 of 2013. The defendants/opposite parties entered appearance in the suit and have been contesting the suit by filing Written Statement. It was specifically pleaded by the defendants/opposite parties in their Written Statement that in view of the judgment and decree passed in Title Suit No. 29 of 1987, the deed executed on 29th March, 1983 ought to be declared void in the eye of law and accordingly the plaintiffs/petitioners have no right, title and interest over the suit property. 4. It is alleged by the petitioners that they had no knowledge about the ex-parte decree passed in Title Suit No. 29 of 1987 before filing of the written statement in the trial court by opposite parties. Accordingly, the petitioners wanted to incorporate the said fact that they had no knowledge about institution of Title Suit No. 29 of 1987 and the alleged ex- parte decree passed in the said suit in the plaint amendment. It was also sought to be incorporated that the petitioners never received summons of the said suit and an ex-parte decree was passed behind their back without service of summons. Therefore, the said ex -parte judgment and decree passed in Title Suit No.29 of 1987 is not binding upon the plaintiffs/petitioners. They also wanted to bring on record subsequent acts of the opposite parties by filing harassing applications under Section 144(2) of the Code of Criminal Procedure and incidents that took place thereafter. They also wanted to specify more particularly the schedule of the suit property by way of amendment of plaint. 5. They also wanted to bring on record subsequent acts of the opposite parties by filing harassing applications under Section 144(2) of the Code of Criminal Procedure and incidents that took place thereafter. They also wanted to specify more particularly the schedule of the suit property by way of amendment of plaint. 5. It is needless to say that with a view to shorten the litigation and speed up the trial of cases Rule 17 of order 6 was omitted by the Code of Civil Procedure (Amendment) Act, 1999. Thereafter, the Rule was restored in its original form by amending Act 22 of 2002 with a rider in the shape of the proviso limiting the power of amendment to some extent. The new proviso lays down that no application for amendment shall not be allowed after the commencement of trial, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 6. In the instant case the petitioners specifically pleaded in their petition under Order 6 Rule 17 C.P.C that they had no knowledge about the ex-parte decree passed in Title Suit No. 29 of 1987 and only after filing of Written Statement by the opposite parties, they came to know about such suit. 7. On perusal of the certified copies of the order sheet passed in Title Suit No. 113 of 2013, it is ascertained that the said suit is fixed on peremptory hearing on 30th January, 2016, when an affidavit containing examination in chief of PW-1 under the provisions of Order 18 Rule 4 of the Code of Civil Procedure was filed. Even the said examination in chief has not been formally tendered by examining PW1 on dock. 8. When the petitioners came up with specific pleading that they had no knowledge about ex-parte decree of Title Suit No. 29 of 1987 the learned trial judge committed an apparent error in holding that the plaintiff's right to amend the plaint has been extinguished after commencement of trial of the suit. Since the fact of institution of Title Suit No.29 of 1987 and subsequent passing of ex-parte decree was not within the knowledge of the petitioners, the learned trial judge ought to have held that in spite of “due diligence, the party could not have raised the matter before commencement of the trial.” 9. Since the fact of institution of Title Suit No.29 of 1987 and subsequent passing of ex-parte decree was not within the knowledge of the petitioners, the learned trial judge ought to have held that in spite of “due diligence, the party could not have raised the matter before commencement of the trial.” 9. For the reasons aforesaid, I am of the considered view that the impugned order cannot sustained and accordingly the said order dated 12th May, 2006 is set aside. 10. The instant revision is, therefore is allowed. 11. The learned trial judge is directed to allow the petitioners to submit amended plaint in the learned court below within two weeks from the date of communication of the instant order. The opposite parties shall be given liberty to file Additional Written Statement, if any, within two weeks from the date of filing of the amended plaint in the learned court below. On completion of all such formalities, as mentioned above, the learned trial judge will be at liberty to fix the suit for peremptory hearing. Urgent Photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.