Calcutta High Court (Appellete Side)
Sri Kanai Lal Dey vs Sri Nemai Chandra Dey & Ors on 20 July, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 3074 of 2010 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Sri Kanai Lal Dey.
Versus
Sri Nemai Chandra Dey & ors.
For the petitioner: Mr. Hiranmoy Bhattacharyya. For the opposite party no.2: Mr. P.P. Roy.
Heard On: 11.07.2011.
Judgement On: July 20, 2011.
Prasenjit Mandal, J.: Challenge is to the Order No.26 dated January 5, 2010 passed by the learned Civil Judge (Senior Division), Bishnupur, District Bankura in Title Suit No.29 of 2007 thereby allowing an application for amendment of the plaint on contest.
The short fact is that the plaintiff / opposite party herein instituted a suit being Title Suit No.29 of 2007 against the defendants before the learned Civil Judge (Senior Division), Bishnupur for partition, injunction and other reliefs. The defendant no.1 is contesting the said suit by filing a written 2 statement denying the material allegations raised in the plaint. The said suit was at the stage of peremptory hearing. At that time, the plaintiff filed an application for amendment of the plaint to which the contesting defendant raised objection. Upon hearing both the sides, the learned Trial Judge has allowed the application for amendment of the plaint. Being aggrieved, the defendant has preferred this revisional application.
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 the learned Trial Judge has rightly observed that in a suit for partition, every parties to the suit may be described as plaintiff as well as the defendant meaning thereby both the parties are equally interested in the suit for partition. The plaintiff has claimed the suit for declaration of his right to the extent of 8 annas share in the suit properties as described in the plaint on the contention that his sisters had relinquished their shares in favour of the plaintiff and as such, the plaintiff got the share of the sisters. But when the summons was issued upon the sisters, they entered an appearance and they contended that they did not make any relinquishment in respect of their shares in the suit properties. It may be pointed out that it is not the case of the plaintiff that the relinquishment of the right, title and interest of the 3 sisters had been done by any registered instrument but orally according to the contention of the plaintiff. But when the sisters began to contest the suit and they claimed their right, title and interest in the properties in suit, the plaintiff sought for amendment claiming 1/4th share in the suit properties. It may be mentioned herein that there are many lands involved in the suit. A copy of the application for amendment has been incorporated as Annexure 'A' to the application at page no.10.
By way of amendment, the plaintiff has not only wanted to cause the change of the nature of his claim in the suit properties. But, he has almost prayed for amendment of all the paragraphs of the plaint contending that he has 1/4th share in the suit properties. He has also stated that the plaintiff and the defendants recorded their names and they have been possessing their respective shares separately according to their convenience. He has also stated in the application for amendment that the proforma defendants, that is, defendant nos.2 to 8 have also share in the suit properties. Thus, by way of amendment, the plaintiff has intended to incorporate reduction of his share from 1/2 share to 1/4th share over the suit properties.
It may be pointed out that at the time of filing of the suit, the plaintiff claimed 1/2 of the suit property and on that basis, he filed an application for temporary injunction and that application was disposed of on the basis of such claim. Even the 4 written statement was filed on the basis of the averments made in the plaint. By the proposed amendment, the plaintiff has wanted to amend everything from paragraph no.1 to the last portion, that is, the prayer portion and also the schedule of the property declaring the extent of share in respect of each plots. Thus, I find that by the proposed amendment, the plaintiff has wanted to place a new plaint in place of the earlier one and the proposed amendment, if allowed, amounts to withdrawal of the admission and it will cause prejudice to the defendants. The admission made by the plaintiff cannot be withdrawn in such a fashion.
If the application for amendment is perused as a whole, it would be apparent that the plaintiff has wanted to substitute a new plaint for the old one withdrawing the admission made by him earlier. Therefore, if it is allowed, the defendant will have to suffer prejudice. The proposed amendment cannot be allowed and the learned Trial Judge has committed errors of law in allowing the said application for amendment of the plaint.
Accordingly, I am of the view that the ground that the application for amendment is allowed to avoid multiplicity of suit and proceedings and to adjudicate the dispute finally, cannot be supported. Accordingly, the impugned order cannot be sustained.
The revisional application is, therefore, allowed. The impugned order is hereby set aside. The application for amendment of the plaint stands rejected. As the suit is pending since 2007, 5 the learned Trial Judge is directed to dispose of the suit within 6 months from the next date of peremptory hearing.
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.
(Prasenjit Mandal, J.)