Vishnu Deb @ Viswa Dev Chatterjee and Others vs Kali Prosad Paswan and Another

Prasenjit Mandal, J.—This is an order over the hearing of the application under Article 227 of the Constitution of India. This application is at the instance of the defendant Nos. 1(a) to 1(c) and is directed against the Order No. 237 dated January 24, 2012 passed by the learned Civil Judge (Junior Division), 3rd Court, Serampore in Title Suit No. 97 of 1986.

In 1969, the plaintiff/opposite party herein instituted a suit for eviction against the petitioners and the proforma opposite party before the learned Civil Judge (Junior Division), 3rd Court, Serampore praying for a decree of khas possession by evicting the defendant from the premises in suit and other consequential reliefs contending, inter alia, that the defendant defaulted in payment of rent since January 1966.

The defendant is contesting the said suit and the suit was at the stage of recording evidence. At that time, the defendant filed an application for amendment of the written statement contending, inter alia, that there is a relationship of mortgagor and mortgagee in respect of a security loan of Rs. 40,000/- and as such, amendment is necessary for proper adjudication. That prayer was rejected on contests. Being aggrieved, the defendants/petitioners have come up with this revisional application.

Having heard the learned Advocates for the parties and on perusal of the materials on record, I find that the learned Trial Judge has rightly addressed the issue. As recorded above, the suit was filed in the year 1969 (subsequently, renumbered as Title Suit No. 97 of 1986) for eviction on the ground of, inter alia, default. The suit was fixed for peremptory hearing in the year 1991 and at the stage of further peremptory hearing, the application for amendment of the written statement was filed. While disposing of the same, the learned Trial Judge has recorded that the application for amendment of the written statement is hit by the proviso to Order 6 Rule 17 of the C.P.C. The learned Trial Judge has also recorded that if the proposed amendment is allowed, it will cause the change all the nature, character and cause of action of the suit. The proposed amendment is not formal at all. Since, the suit is for eviction and recovery of possession on the ground, inter alia, default, issues have been framed accordingly and the plaintiff has adduced evidence in the suit according to the pleadings of the parties. So, the plaintiff would be prejudiced by the amendment.

Under such circumstances, the proposed amendment is no doubt contrary to the written statement filed earlier and the learned Trial Judge has rightly held that the proposed amendment, if allowed, will cause the change of the nature and character of the suit. The proviso to Order 6 Rule 17 of the C.P.C. need not be considered in the instant suit.

During the argument, Mr. Anit Rakshit, learned Advocate appearing for the petitioners, has referred to the decision of B.K.N. Narayana Pillai Vs. P. Pillai and Another, and thus, he has submitted that the defendant has right to take alternative pleas in defence by way of amendment, but subject to the qualifications that: (i) proposed amendment should not result in injustice to the other side; (ii) any admission made in favour of plaintiff should not be withdrawn; and (iii) inconsistent and contradictory allegation which negate admitted facts should not be raised. He also submits that the learned Trial Judge was wrong in rejecting the prayer for amendment.

Mr. Debasish Roy, learned Advocate appearing for the opposite party No. 1, has submitted that the petitioners filed a civil revision being C.O. No. 3486 of 2005 and that civil revision was disposed of by this Hon''ble Court by order dated November 13, 2006 directing the learned Trial Judge to dispose of the suit within a period of six months from the date of communication of this order. In spite of that, the suit is pending.

Thus, from the above conduct, it appears that the defendant has taken dilatory tactics to avoid the disposal of the suit and that is why in spite of the order of this Hon''ble Court, the matter is still pending.

Therefore, I am of the view that the learned Trial Judge has rightly rejected the said application for amendment on appropriate grounds barring the ground that the application comes within the mischief of the proviso to Order 6 Rule 17 of the C.P.C.

Accordingly, in my view, there is no scope of interference with the impugned order.

The application is, therefore, dismissed.

However, there will be no order as to costs. The learned Trial Judge is directed to dispose of the suit as early as possible preferably within a period of three months from the date of communication of this order. If necessary, he shall take up the suit for further peremptory hearing on day-to-day basis and he shall not grant any adjournment to either of the parties except in extreme emergent cases.

Urgent xerox certified copy, if applied for, be given to the learned counsel for the petitioners upon compliance of necessary formalities.