Calcutta High Court (Appellete Side)
CO/2277/2018 on 19 March, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1 19-03-2019
sl. 292 pk C.O. 2277 2018 Mr. Tanmoy Mukherjee ...for the petitioners.
Mr. Sharmistha Ghosh Sharma ... for the plaintiff/opposite parties. The revisionists are aggrieved by an order no. 52 dated 09.01.2018 in T. S. No. 26 of 2013 passed by the learned Civil Judge (Junior Division), 2nd Court at Diamond Harbour.
By the impugned order an application for amendment of plaint was allowed by the court below without any discussion and without assigning any reason for allowing the same.
The facts relevant for the purpose of deciding the instant revisional application are inter alia as follows :
T. S. No. 25 of 1987 was filed by the defendant against the plaintiff in respect of the self same property which was decreed in favour of the plaintiff. Thereafter in the year 1996 the plaintiff/opposite party filed T. S. No. 103 of 1996 in respect of the self same property. The said suit was dismissed for default in the year 1997. No steps have been taken by the plaintiff/opposite party to revive the said suit. In the year 2013 the instant suit was filed in the court below and asserting the 2 rights contrary to the decree in T. S. No. 25 of 1987 in respect of the self same property.
In the said suit sometime in the year 2013 itself the defendant filed a written statement in which the point of res judicata and the earlier two suits and the decrees passed thereunder were duly raised by the revisionist/defendant. After four years of filing of written statement, the plaintiff/opposite party filed an application for amendment of the plaint seeking to include an additional cause of action that the earlier decrees were obtained by fraud and collusion and not binding on the opposite party.
The amendment was allowed mechanically by the court below as is clearly evident from the impugned order. None of the objection raised by the revisionist/defendant in the suit appears to have been considered even causally by the court below.
It is vital to note that introduction of a new cause of action will invariably change the nature and character of the suit. In the instant case the new cause of action would be an assertion that an earlier decrees is fictitious, collusive and not binding the plaintiff/opposite party. Even assuming for the sake of argument that the same arises within the scope of original cause of action, the same appears to be prima facie barred by 3 laws of limitation particularly Article 59 of 4th Schedule of the 1963 Act. The court below has completely ignored the same. The learned counsel for the opposite party apart from vehemently urging that the amendments are filed and necessary and fair adjudication of the instant suit has not been able to demonstrate anything to counter the points raised by counsel for the revisionist. Even the submissions that there are properties other than those covered under the earlier suits, is unfortunately not supported by any pleading or document that is on record before this Court. No additional or new document has been produced in support thereof. Hence the opposite party's defence in support of the impugned order cannot be accepted.
The impugned order is hereby set aside.
The application for amendment shall stand rejected and dismissed.
The suit shall be expedited.
Let T. S. No. 26 of 2013 now pending before the learned Civil Judge (Junior Division), 2nd Court at Diamond Harbour, South 24 Parganas be disposed of within a period of two months from the date of communication of a copy of this order.4
With the aforesaid observation, the revisional application is disposed of.
No order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)