Sudam Chandra Maharana @ Barai vs Sudhir Chandra Maharana @ Barai and Others

Prasenjit Mandal, J.—This application is at the instance of the plaintiff and is directed against the order No. 60 dated January 20, 2005 passed by the learned Civil Judge (Senior Division), First Court, Contai in Title Suit No. 156 of 2000 thereby allowing a petition for amendment of the written statement upon payment of costs.

The short fact of the case is that the plaintiff filed the Title Suit No. 156 of 2000 praying for a preliminary decree for partition and other reliefs in respect of the ''kha'' schedule property as described in the schedule of the plaint. In that suit, the defendants appeared and they filed a written statement. The suit was at the stage of recording evidence. Accordingly, the plaintiff filed evidence by way of affidavit under Order 18 Rule 4 of the CPC on January 20, 2005. On that very day, the defendant Nos. 5 to 7 filed a petition for amendment of their written statement on the grounds mentioned therein. Accordingly, that application was taken up first for consideration. It was heard on behalf of the both the sides. The learned Trial Judge has observed that the proposed amendment was necessary for the purpose of effective adjudication of the suit and that the proposed amendment if allowed will not cause the change of the nature and character of the suit. Accordingly, that application was allowed on payment of costs of Rs. 200/- and the learned Trial Judge also fixed the next date for peremptory hearing and payment of costs. Being aggrieved by such orders, the plaintiff has come up with this application.

Now the point for consideration is whether the impugned order can be sustained.

Upon consideration of the submission of the learned Advocate of both the sides and on perusal of the materials on record, I find that there is no illegality in the order impugned. Before recording any evidence on behalf of either parties, the learned Trial Judge has allowed the petition for amendment of the written statement observing that such amendment was necessary for the purpose of proper disposal of the suit. The contention of the learned Advocate for the petitioner is that, in fact, no copy of the application for amendment of the written statement was ever served upon the learned lawyer for the petitioner. It is also contended that Mr. D. Das was not the conducting lawyer on behalf of the plaintiff at all. But the learned Advocate for the opposite party raises strong objection to the contention of the learned Advocate for the petitioner. He supports of the order impugned.

Upon consideration of the materials on record and the above noted facts and observations, it appears that Mr. D. Das received the copy of the application for amendment of the written statement. Upon hearing both the sides that application for amendment for the written statement was allowed for proper adjudication of the matter in dispute. The question whether Mr. D. Das was really an Advocate on behalf of the plaintiff or not could have been agitated before the learned Trial Judge immediately after passing of the order impugned or as soon as thereafter so that the learned Trial Judge could have decided the matter when the incident was very much vivid in his mind. Instead of doing that the plaintiff has come up with this revisional application. So, this revisional application has nothing to do against the reasoned order passed by the learned Trial Judge. Therefore, I am of the view that the learned Trial Judge has not committed any error of law in passing the impugned order. This revisional Court cannot decide whether Mr. D. Das was actually represented the plaintiff on the day of peremptory hearing or not. If I direct to decide the matter afresh, it will not serve any purpose after lapse of so many years since the date of passing of the order dated January 20, 2005. Therefore, at present there is no scope of interference with the impugned order.

Accordingly, this application is meritless. It is, therefore, 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.