Siddhartha Sankar Mitra vs Bablu Mitra and Others

Prasenjit Mandal, J.—This application is at the instance of the plaintiff and is directed against the Order No. 25 dated November 21, 2012 passed by the learned Civil Judge (Junior Division), 1st Court, Baruipur in Title Suit No. 34 of 2011 thereby rejecting an application for amendment of the plaint. The plaintiff/petitioner herein instituted the aforesaid suit against the defendants before the learned Trial Judge for a decree of declaration of plaintiff''s title in respect of the "A" Schedule property, a decree of recovery of khas possession in respect of Schedule "C" property against the defendants by evicting the defendants therefrom, a decree for permanent injunction restraining the defendants from disturbing the peaceful possession of the plaintiff over the Schedule "A" property and other consequential reliefs.

The defendants are contesting the said suit by filing a written statement denying the material allegations raised in the plaint. Issues are to be framed in the suit on the basis of the pleadings of the parties. At that juncture, the plaintiff filed an application for amendment of the plaint, copy of which has been annexed as Annexure P-3 at page No. 40 of the application. That application has been rejected by the impugned order. Being aggrieved, this application has been preferred.

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

Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that as to the ground for amendment, the plaintiff has contended that due to inadvertent mistake of the learned Advocate, certain facts could not have been properly set out and certain facts are of subsequent event, which are to be incorporated and such subsequent facts relate to the facts stated in the affidavit-in-opposition.

Upon perusal of the schedule of amendment of the plaint, it appears that the plaintiff has wanted to incorporate certain facts which relate to the period from 1988 to 2007 contending, inter alia, that the defendant Tapan Kr. Mitra was unheard of for that period and that the heirs of Tapan Kr. Mitra reside at his father-in-law''s house. This is not at all of subsequent event and it cannot be described as unknown to the plaintiff at the time of the institution of the suit. The plaintiff has wanted to incorporate that during the pendency of the suit, the defendants tried to raise construction forcibly and illegally on the first floor over the suit property and the plaintiff had to lodge a G.D. entry being No. 486 dated November 18, 2011. The plaintiff has also wanted to incorporate that as per agreement between the landlord and the tenant, the tenant had vacated the said three rooms described in schedule "B" on November 30, 2011 and the plaintiff had taken possession of the tenanted portion and unfortunately, the defendants forcibly occupied such tenanted portion and the plaintiff had to lodge a G.D. entry also on the same date, i.e., November 30, 2011. Thus, the defendants had taken forcibly occupation of the "B" Schedule property. So, the plaintiff has also wanted to incorporate the prayer for recovery of possession in respect of "B" Schedule property.

Previously, the cause of action was described as on November 9, 2011 and now, the plaintiff has wanted to change the date of cause of action also on November 30, 2011. He has also wanted to correct the suit valuation by adding the figure of Rs. 350/- after the word 1000/- in paragraph No. 12 of the plaint.

While dealing with the amendment matter, the learned Trial Judge has recorded that if the prayer for amendment is allowed, it will cause the change of the nature and character of the suit. The cause for amendment as described in paragraph No. 2 of the application to the effect that due to inadvertence of the learned lawyer, such mistake had taken place, in my view, cannot be accepted.

However, since the prayer has been moulded describing the other relief for recovery of possession in respect of the suit property contending, inter alia, that the possession of such property had been taken away forcibly on November 30, 2011 and in consequence, amendment has been sought for, if the proposed amendment is incorporated, such fact and in consequence, the change of the relief as well as the valuation of the suit cannot be described as the change of the nature and character of the suit. The suit shall remain a suit for declaration of title, recovery of possession, permanent injunction and other reliefs. As recorded above, issues have not yet been framed and so, if the amendment is allowed, the defendants will be able to file an additional written statement and then on the basis of such pleadings of both the parties, the dispute between the parties can be adjudicated once for all; otherwise, another litigation for recovery of possession in respect of "B" schedule property is to be lodged. Therefore if the amendment is allowed, the multiple proceedings over the selfsame suit property will be avoided. Thus, in my view, by the proposed amendment the defendants will not be prejudiced in any way; rather, there is a chance of complete adjudication of the dispute between the parties in a single suit.

Accordingly, in my view, the learned Trial Judge has acted illegally and with material irregularity in holding that if the amendment is allowed, the amendment will change the nature and character of the suit.

Therefore, in my view, the impugned order cannot be sustained.

The application succeeds and is, therefore, allowed.

The impugned order is hereby set aside.

The application for amendment of the plaint stands allowed. The learned Trial Judge is directed to proceed with the suit from that stage in accordance with law.

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.