Mina Mondal vs Basudeb Naskar

Manojit Mandal, J

This application is at the instance of the pre-emptor/petitioner and is directed against the Order No. 68 dated 24.04.2019 passed by the learned Civil

Judge (Junior Division), 2nd Court, Baruipur, South 24-Parganas in Miscellaneous Case No. 78 of 2010 thereby rejecting an application for

amendment of the petition for pre-emption.

The pre-emptor/petitioner herein instituted the aforesaid Miscellaneous Case for pre-emption under Section 8 of the West Bengal Land Reforms

Act, 1955 against the pre-emptee/opposite party. The pre-emptee/opposite party is contesting the said case by filing a written objection denying the

material allegations raised in the petition. The case was fixed for hearing argument and on that date an application for amendment of the petition was

taken up by the pre-emptor/petitioner which was rejected on contest by the order impugned. 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 sides and on perusal of the materials on record, I find that the contention of the pre-emptor is that, at

the time of filing of the case due to mistake the date when the opposite party came to take possession of the land was not mentioned but in the brief

copy it was written as 01.09.2010. Following the brief copy, the date has been mentioned as 01.09.2010 in the examination-in-chief on affidavit but at

the time of argument, it was detected that in the application for pre-emption, the said date has not been mentioned. The said mistake is a bona fide and

it was not detected earlier. The petitioner with due diligence could not detect those defects earlier. On the other hand, I find that the contention of the

pre-emptee/opposite party is that the petitioner wants to amend the petition for the purpose of avoiding limitation period for applying pre-emption and

there was no bonafideness or due diligence for filing the said petition under Order 6 Rule 17 of the Code of Civil Procedure.

Having considered the above fact, it is apparently clear that pre-emptor/petitioner has not mentioned the date in her petition when the opposite party

has come to take possession of the land. So, the amendment application to such effect was required to be filed at the initial stage of the proceeding.

Instead of filing the said application at the initial stage, the petitioner has filed the same at a belated stage, i.e. after closure of the evidence of the

parties. By lapse of time the pre-emptee/opposite party has acquired some right. If at this stage, the amendment application is allowed, it will take

away a legal right from the opposite party which has accrued to him by lapse of time. There is also no cogent ground in the application to allow the

belated attempt to amend the petition. As per provision of Order 6 Rule 17 of the Code of Civil Procedure (proviso) no application for amendment

shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence the party could not have raised

the matter before commencement of the trial. In this case, I find that there was no bonafideness or due diligence for filing of the said application under

Order 6 Rule 17 of the Code of Civil Procedure by the pre-emptor/petitioner and the alleged mistake of the pre-emptor/petitioner appears to be mala

fide in nature and for the purpose of filing up lacunas in the case.

In support of his contention, learned Advocate appearing for the petitioner has referred to the decision of the State of Bihar and Ors. V. Modern

Tent House and Ors. reported in AIR 2017 SC 4966 and Varun Pahwa V. Mrs. Renu Chaudhary reported in 2019 0 Supreme (SC) 228.

The decision of Varun Pahwa (supra) is not applicable in this case as because the appellant filed an application for amendment of the plaint on the

ground that counsel had inadvertently made the cause title of the suit wrongly, the suit was to be in the name of the Company but in cause title, the

name of director was mentioned and as such the amendment was procedural in nature but in the instant case the proposed amendment effects the

merit of the case.

The another decision of State of Bihar (supra) will not also help the petitioner as because the proposed amendment was on the facts and the

appellants wanted to elaborate the facts already pleaded in the written statement and in that case the recording of evidence of parties was not over

but in the instant case the evidence of parties have already been recorded and the case is at the stage of argument.

Under these facts and circumstances, I am of the view that the learned Trial Judge has rightly concluded with regard to the prayer of the petitioner.

There is also no scope of interference with the impugned order.

The revisional application fails to succeed. It is disposed of accordingly.

There will be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis.