Calcutta High Court (Appellete Side)
M/S. Sri Krishna Trading Co vs Hiren Podder & Ors on 8 June, 2016
Author: Soumen Sen
Bench: Soumen Sen
1 28 08.06. C.O. 1067 of 2016 AGM 2016 M/s. Sri Krishna Trading Co.
Vs. Hiren Podder & Ors Mr. K. J. Tewari, Mr. T. J. Tewari, .... For the Petitioner.
Mr. Abhijit Dey, Ms. Debjani Das, .... For the Opposite Party 1 & 2.
Mr. Gunjan Shah, .... For the Opposite Party 3 & 4.
An application filed by the defendant No. 1 and 2 for rejection of the amended plaint was allowed by the Trial Judge. This has resulted in the filing of the present revisional application. The plaintiff initially filed a suit for declaration of title as a tenant and for injunction against the opposite party No. 1 and 2. The opposite party No. 1 and 2 are the landlord and owner of the premises in question. During the pendency of the said proceeding, the opposite party no. 3 and 4 appeared and filed an application for addition of party. The said application was allowed by the Trial Judge by an order dated 20th July 2015. The plaintiff accordingly was directed to file an amended plaint under Order 1 Rule 10(4) of the Code of 2 Civil Procedure upon all the defendants including the added defendants.
During pendency of the aforesaid proceeding, it appears that the added defendants has also filed an application before the City Civil Court praying for declaration of their tenancy rights and in which the petitioner is added as one of the defendants.
The Hon'ble Division Bench by an order dated 24th December 2014 directed analogous hearing of both the suits in order to avoid conflict of the decisions.
The petitioner consequent upon an order dated 20th July 2015 filed amended plaint.
The opposite party no. 1 and 2 filed an application for rejection of the amended plaint on the ground that it has travelled beyond the scope of the order dated 20th July 2015 as it purports to incorporate certain pleadings which would not come within the purview of Order 1 Rule 10 (4) of the Code of Civil Procedure. The Trial Court while deciding the said application appears to have accepted the said contention. Infact, the reason for rejection is not discernible from the impugned order and as this Court presumes the Trial Court accepted the submission made on behalf of the defendant no. 1 and 2 and dismissed the 3 said application.
The Trial Court, however, gave liberty to the plaintiff to amend the plaint by incorporating the name of the defendant no. 3 and 4 in the cause title of the plaint and to amend the prayer to substitute the word 'defendants' in place of the defendant. The said defendants were claiming joint tenancies. The original suit was framed as only against the landlord and owners of the properties and as such the question of added defendants evicting the plaintiff illegally possibly would not arise. Even if such a situation has arisen it has to be on a separate footing altogether. The mere substitution of the word ' defendants' in place of defendant would not suffice. This necessarily brings into question whether the proposed amendments are necessary consequent upon addition of the defendants nos. 3 and 4.
Under Order 1 Rule 10(4) where a defendant is added, the plaint shall unless the Court otherwise directs be amended in such manner as may be necessary. The Court instead of trying to find out as to whether the said amendment is necessary consequent upon the addition of the defendants had laid much emphasis on the test of due diligence that would have been applicable in deciding an 4 application under Order 6 Rule 17 of the Code of Civil Procedure.
The Court was swayed by the amended provision of Order 6 Rule 17 of the Code of Civil Procedure and allowed the said petition without actually deciding and or arriving at a finding as to whether the plaintiff has failed to perform his duty in not impleading the said defendants earlier.
In my view, the proposed amendment is necessary consequent upon the addition of the defendants no. 3 and 4 as defendants in the suit and there would as such no requirement to file an application under Order 6 Rule 17 of the Code of Civil Procedure.
Under such circumstances, the impugned order is set aside.
The revisional application allowed. The defendants shall be entitled to file additional written statement within a period of four weeks from date.
Upon filing of the written statement, the Trial Court is requested to pass peremptory direction with regard to procedural matters in order to make both the suits ready for hearing and shall make all endeavour to dispose of both the suits as expeditiously as possible and preferably 5 within a period of one year from the date of commencement of trial.
( Soumen Sen, J.)