Gopi Nath Dalui vs Sukumar Bhusan Nandy

Prasenjit Mandal, J.—This application is at the instance of the defendant and is directed against the Order No. 59 dated January 12, 2010 passed by the learned Judge, Presidency Small Causes, 5th Bench, Calcutta in Ejectment Suit No. 43 of 2003 thereby rejecting an application for amendment of the plaint. The plaintiff/opposite party herein instituted the aforesaid suit for ejectment and recovery of possession against the petitioner in respect of the one shop room being situated at the ground floor at Premises No. 101/A/1B, Surendra Nath Banerjee Road, P.S. Taltala, Kolkata-700014. The defendant/petitioner is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. The suit was at the stage of peremptory hearing and the evidence of the P.W.1 was being recorded. At that stage, the application for amendment of the plaint was filed, which was allowed on contests with costs of Rs. 500/-. Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned Advocates of both the sides and on perusal of materials on record, I find that the contention of the plaintiff is that the ejectment notice was typed on June 13, 2006 and was handed over to the plaintiff for posting. But, the plaintiff did not post the said notice till June 23, 2003 and thereafter, the notice was retyped on June 23, 2003 and posted on June 24, 2003 by Registered Post. At the time of retyping, the date June 23, 2003 was inserted in the original notice which was served upon the defendant/petitioner herein. While the preparation of the plaint was made, the plaint disclosed the date of notice as June 13, 2003. Evidence was led accordingly. During the cross-examination of the P.W.1, the original notice was tendered by the defendant and it was marked as Exhibit G and G/1 wherefrom it appears that the notice was dated June 23, 2003 and not June 13, 2003.

Under the circumstances, on getting some anomaly, the plaintiff filed an application for amendment of the plaint immediately for correction of the said mistake and that application was allowed by the impugned order.

Having considered the above fact, it is apparent that the mistake, as pointed out above, is nothing but a clerical mistake and it could not be detected earlier save and except when the cross-examination of the P.W.1 was going on and the original notice was tendered to the witness during the cross-examination for confrontation.

Mr. Basudeb Gayen, learned Advocate appearing on behalf of the petitioner, has vehemently objected to the said amendment and submitted that the admission made in the plaint cannot be withdrawn by way of amendment. He has contended that by the amendment, the nature and character of the suit has been changed and the cause of action has also been changed. He has also submitted that the plaint lays down the date of notice as June 13, 2003 and even the notice annexed to the plaint lays down ''dated June 13, 2003'' and as such, such statement being admission the plaintiff, cannot be allowed to be amended. The plaintiff cannot be allowed to deviate from his admission.

In support of his contention, Mr. Gayen has referred to the decisions of Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others, , Jagath Swapna and Company Jagtial Vs. Church of south India Trust Association Madras and Others, and Vimal Chand Ghevarchand Jain and Others Vs. Ramakant Eknath Jajoo, .

So far as the decision of M/s. Revajeetu Builders and Developers (supra) particularly paragraph nos. 25, 28, 32, 61-64 and 67 are concerned, I find that this decision relates to the basic principles as to amendment and that the amendment changing the entire character of the plaint and in that situation, the application should be rejected. Here, the entire character of the suit remains the same by the proposed amendment, that is, the suit for ejectment and the grounds are for default and causing damage to suit premises. The only change is with regard to the date of notice and the plaintiff has explained how the mistake had taken place. Therefore, with due respect to Mr. Gayen, I hold that this decision will not be applicable in the instant case.

So far as the decision of M/s. Jagath Swapna & Company, Jagtial (supra) particularly paragraph nos. 15, 16 and 17 are concerned, they relate to the fact that after the commencement of the trial, the amendment cannot be allowed liberally. Party has to satisfy the Court that in spite of due diligence, he could not raise the matter before the commencement of the trial. In this regard, as noted earlier, the plaintiff was very much in belief that the notice to quit was issued on June 13, 2003 and accordingly, he led evidence. The real fact came to light when the original notice to quit, i.e., Exhibit G & G/1 were tendered to the witness during his cross-examination. At that time, the mistake was detected. So, the plaintiff had no opportunity to pray for amendment at the earlier point of time. As I have held earlier that the mistake as pointed out is a mere typographical mistake and nothing else, I am of the view that this decision will not help to Mr. Gayen''s client.

The other decision, that is, Vimal Chand Ghevarchand Jain & ors. (supra) particularly paragraph No. 16 is concerned, this relates to the fact that amendment mutually destructive to each other is not permissible. In the instant case, if the first date, i.e., June 13, 2003 as recorded in the plaint is accepted, the other date, i.e., June 23, 2003 is likely to be rejected. Since I have stated that it is nothing but a mere typographical mistake, the fact cannot be described as mutually destructive to each other.

If the application for amendment is rejected on the ground that this amendment has been sought for after the commencement of the trial and destructive to the earlier statement as made in the plaint, the plaintiff will have no other recourse but to pray for withdrawal the suit with permission to file a suit afresh. In that case, both the parties have to face troubles and hazards in respect of institution of a fresh suit, though the present suit is at the stage of trial. Moreover, typographical mistake or clerical mistake could be amended/corrected at any stage, if the situation demands and if necessary after passing of the decree. Therefore, it is desirable that a lenient view should be adopted in this respect without following the strict rules of the procedure. Since, I have described that the above mistake is nothing but a typographical mistake, the learned Trial Judge has taken a lenient view in allowing the said application for amendment of the plaint upon payment of costs.

As noted above, the nature and character of the suit will not be changed at all by the amendment. The question of suffering any prejudice on the part of the defendant does not arise at all because it is the defendant who placed the original notice to quit to show that there is some typographical mistake in between the plaint and the notice to quit.

Accordingly, I am of the view that the learned Trial Judge has rightly addressed the issue. He has rightly allowed the application for amendment of the plaint for proper adjudication of the dispute once for all. The impugned order does not suffer from illegality or material irregularity at all.

In that view of the matter, I have no other alternative but to support the impugned order and to dismiss the application.

Accordingly, the application is dismissed.

Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.