Ganendra Nath Roy vs Sm. Satyabala basu

Renupada Mukhrjee, J.—This Rule is directed against an order passed by the learned Munsif refusing to accept an additional written statement filed by the Petitioner of this Court. The order passed by the learned Munsif is a very short one and may be quoted here:

Defendant files a petition in support of his petition for amendment of the written statement. The Plaintiff files an objection to such amendment. Heard pleaders. The additional written statement cannot be accepted as it seeks to make out a definite improvement upon the original case which will be too difficult for the Plaintiff to meet.

The suit in connection with which this application was filed was instituted by the Plaintiff opposite party Sm. Satya Bala Basu for recovery of a sum of Rs. 2,439 on a hand note. The main defence of the Defendant Petitioner who alone contested the suit in the trial court was that the hand note in question was not a genuine one. It appears that after the filing of the written statement both parties took steps and the suit was ultimately set down for peremptory hearing on November 27, 1956. A few days before that the Defendant filed an application for shifting the date of peremptory hearing. The date was accordingly changed to January 9, 1957. On an interim date, that is, on December 17, 1956 the Defendant Petitioner filed an application for amendment of his written statement by adding a certain paragraph in which a plea was taken that a substantial amount had been paid upon the hand note and this fact was not known to the Defendant Petitioner earlier. This application was rejected by the learned Munsif.

After hearing Mr. Roy on behalf of the Petitioner and Mr. Ghose on behalf of the Plaintiff opposite party, I am of opinion that this Rule must be made absolute because the grounds given by the learned Munsif for rejecting the application are not tenable in law. The learned Munsif was of opinion that there would be a definite improvement upon the original case of the Defendant if the application was allowed and that it would be "too difficult" for the Plaintiff to meet the amended case of the Defendant. It is not known exactly what the learned Munsif meant by the latter expression. The law certainly allows a Defendant to take whatever defence he chooses to take unless such defence is ruled out by some provision of law. The law does not at all take into its consideration the difficulty of the Plaintiff in such a matter. It may be that the defence which is sought to be taken in the petition of amendment is inconsistent with the main original plea of the Defendant that the hand note was a false and fabricated document. But it is permissible for a Defendant in a suit brought by the Plaintiff for recovery of money due on a hand note to take such an alternative plea. In my opinion, the learned Munsif should have accepted the application of the Petitioner for amending the written statement and his failure to do so amounts to a refusal to exercise a jurisdiction which was vested in him by law.

Mr. Ghose appearing on behalf of the Plaintiff opposite party took a plea that the Rule is not in order inasmuch as it was issued by two Judges of a Division Bench whereas the matter is within the cognizance of a single Judge of this Court. I do not think that there is any real substance in this contention because a Division Bench consisting of two Judges is quite competent to issue a Rule in connection with a matter which is within the cognizance of a single Judge of this Court under the rules of the Appellate Side.

In the result this Rule is made absolute. The order complained of is hereby set aside. The learned Munsif will accept the additional written statement filed by the Defendant Petitioner on December 17, 1956 provided the latter pays to the Plaintiff opposite party a sum of Rs. 25 (Rupees twenty-five only) as compensatory cost within two weeks of the arrival of records in the court below. If no such costs are paid within the time allowed then the application for acceptance of the additional written statement will stand dismissed. If the additional written statement is accepted, then due opportunity will be given to the Plaintiff to summon witnesses for meeting the case made out in the additional written statement. Thereafter the learned Munsif will proceed to hear the suit in accordance with law.

Parties will bear their own costs in this Court.