Hrishikesh Dhar vs Saswata Mishra & Anr

Biswajit Basu, J

The Revisional Application under Article 227 of the Constitution of India is at the instance of the pre-emptor in a proceeding under Sections 8 & 9 of the West Bengal Land Reforms Act, 1955(hereinafter referred to as the said Act , in short) and is directed against order no.73 dated July 26, 17 passed by the learned Civil Judge (Junior Division) 2nd Additional Court Contai, Distrct -Purba Medinipur in J Misc Case no.27 of 2015, whereby the learned Trial Judge has allowed an application seeking amendment of the written objection to the pre-emption application.

The petitioner is seeking pre-emption of the disputed sale in favour of the pre-emptees/opposite parties on the grounds of non-notified co-sharership and vicinage.

The application for pre-emption under Section 8 of the said Act filed by the petitioner has been registered before the learned Trial Judge as J Misc. Case no. 27 of 2015.

The pre-emptees sought for amendment of their written objection to the application for pre-emption when the said misc. case was fixed for argument.

The pre-emptor objected to such amendment mainly on the ground that the trial of the Misc. Case since has commenced, the said amendment cannot be allowed being barred under the proviso appended to Order VI Rule 17 of the Code of Civil Procedure.

On perusal of the application for amendment it appears that pre-emptees have offered the following explanation for their delayed approach in seeking the said amendment:-

"That some material fact which are necessary for determination of the Misc. Case required to be added in the written objection by way of amendment.

That the opposite parties were not aware properly about the facts sought to be amended of the W.O. The proposed amendment will not change the nature and character of the J. Misc. case rather it will necessary for the interest of justice.

That for the interest of justice and for effective adjudication of the J Misc. case the proposed amendment is required to be allowed. Other wise (sic otherwise) the opposite parties will suffer irreparable loss and injury as well as they will not be adduce (sic. adduced) proper evidence".

The learned Trial Judge upon consideration of the decision of the Supreme Court in the case of Ramesh Kumar Agarwal Vs. Rajmala Exports (P) Ltd. reported in (2012)5 SCC 337 took a liberal view in allowing the said amendment.

Order VIII Rule 1 of the Code after being substituted by the Code of Civil Procedure (Amendment) Act, 2002 mandates filing of written statement within the period stipulated therein.

The provision of Order VI Rule 17 of the Code has also been substituted by the aforesaid amendment Act. A proviso has been added to the Order VI Rule 17 of the Code to put a restriction on the amendment of pleadings after commencement of trial.

A liberal approach to dilute the effect of the aforementioned provisions would completely obliterate the object sought to be achieved by the above mentioned Amendment Act.

The Supreme Court in the case reported in (2012)5 SCC 337 (supra) relied on by learned Trial Judge had no occasion to deal with the issue regarding permissibility of amendment of pleadings after commencement of the trial of the suit, therefore, the said judgment has no manner of application in deciding the objection of the petitioner against the said application for amendment.

The proviso appended to Order VI Rule 17 of the Code mandates that when a application for amendment is filed after commencement of trial of the suit, the Court before allowing the said application must come to the conclusion that in spite of due diligence the party seeking such amendment could not have raised the matter before commencement of trial.

In the present case the opposite parties have not offered any explanation sufficient for the Court to come to the such conclusion.

The learned Trial Judge, therefore, has exercised jurisdiction not vested in him in allowing the said application for amendment.

The order impugned is set aside. C.O 2647 of 2017 is allowed. There shall be no order as to costs.

The learned Trial Judge is requested to expedite the hearing of the suit.

Urgent photostat certified copy of this order if, applied for, be supplied to the parties subject to compliance with all requisite formalities.