Calcutta High Court (Appellete Side)
Kalyani Roy @ Sudha Roy vs Saraswati Koner And Ors on 5 October, 2016
.10.2016 kc(4) C.O. 2036 of 2007 Kalyani Roy @ Sudha Roy
-versus-
Saraswati Koner and Ors.
In this application under Article 227 of the Constitution of India, being C.O. 2036 of 2007, none appears. Accordingly, it is taken up for consideration and disposal on merit, being an old one.
The application has been filed assailing the order no. 132 dated 11th January, 1999, passed by learned Civil Judge (Senior Division), Kalna in Title Suit no. 56 of 1989 re-numbered as Title Suit no. 34 of 1990, by which the amendment application dated 9th November, 1998, bearing the prayer for amending the plaint by deleting the original paragraphs no. 2 and 3 with replacement of the proposed new paragraphs no. 2 and 3, mentioned in the amendment application, was rejected with cost of Rs. 50/-.
From the materials available on record it is understood that the suit has been filed claiming share in the suit property by disclosing the history of acquisition of the property and inheritance therefrom. The plaintiff/ petitioner in the proposed amendment application had submitted that she had disclosed all facts but it appeared subsequently that there were some mistakes in the narration of statements of facts regarding inheritance and that is why the application proposing amendment of plaint was filed.
It is obvious that if the common ancestor or predecessor-in-interest of the parties be proved to have been died before 17th June, 1956, i.e. before coming of the Hindu Succession Act, 1956 into operation or after the same, there would be change in the affairs of inheritance. But these are all subject to adequate evidence to be led by the parties.
From the impugned order I do not find any indication that the impugned amendment application was presented, either during or after completion of 2 evidence on record. I also do not find any observation of the learned trial Judge that by such amendment, if allowed, there would be any basic change in the nature and character of the suit. Rather, the learned trial Judge rejected the application with cost of Rs. 50/- giving observations "I think, it is not necessary to amend that portion by way of proposed amendment of plaint which has been stated in the original suit. It is a matter of law ...(illegible) to amend the plaint. In such a position, I think that the proposed amendment of plaint filed by the plff. Can not be allowed in any manner".
This Court holds that the observations of the learned trial Judge in rejecting the amendment application dated 9th November, 1998 has virtually caused mis-carriage of justice by withholding the liberty of the plaintiff/petitioner to assert the fact and to lead evidence to that effect; because if the plaintiff/petitioner could not be able to prove the fact contended, even by proposed amendment, consequences would be followed.
Upon such observations, the Court cannot stand by the side of the impugned order and, therefore, the order no. 132 dated 11th January, 1999, passed by learned Civil Judge (Senior Division), Kalna in Title Suit No. 34 of 1990 is set aside and the revisional application is allowed on merit.
Accordingly, learned trial Judge is directed to record appropriate order allowing the amendment application dated 9th November, 1998 filed by the plaintiff in the suit with other incidental directions for incorporation of the amended portion in the body of the plaint and asking the plaintiff also to furnish a fresh copy of the amended plaint on record by supplying a copy of the same to the defendant and to fix up date, giving reasonable time to the defendant, to file additional written statement, if written statement is already on record and thereafter shall proceed with the suit stage wise for its expeditious disposal taking note of the old age of the suit.
Let a copy of this order be sent down immediately to the Court of the learned Civil Judge (Senior Division), Kalna for information and to act accordingly.
3There will be no order as to costs.
Urgent photostat certified copy of this order, if applied for, be furnished on priority basis.
(MIR DARA SHEKO, J.) 4