Calcutta High Court (Appellete Side)
Sri Ashok Kumar Bhotika vs Smt. Asha Rao & Ors on 16 July, 2019
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
1 16.07.19
Srimanta List - S/L Sl. No. 03 Ct. No. 25 C.O. 2096 of 2019 Sri Ashok Kumar Bhotika
-Vs.-
Smt. Asha Rao & Ors.
Mr. Sourav Sen, Adv., Mrs. Jamuna Saha, Adv.
...for the petitioner.
Mr. Sakya Sen, Adv., Ms. Priyanka Saha, Adv., Ms. Sanjana Basu, Adv., Ms. Sormi Dutta, Adv.
...for the opposite party No. 1.
Supplementary affidavit filed by the petitioner in Court today be kept with the record.
An Order dated 8th April, 2019 passed by the learned Civil Judge (Senior Division), 4th Court at Alipore in Title Suit No. 20 of 2009 allowing an application for amendment of plaint is impugned in the instant revision at the instance of the defendant no. 1 invoking the jurisdiction of this Court under Article 227 of the Constitution of India.
The opposite party no. 1 as plaintiff filed Title Suit No. 100 of 1994 in the 4th Court of the learned Civil Judge (Senior Division), Alipore against the defendants/opposite parties praying for partition in respect of the property left by one Durga Prasad Bhotika. Suffice it to mention that the parties to the suit are the legal heirs of the said Durga Prasad Bhotika, since deceased and inherited the properties left by him.
In the said suit for partition, the plaintiff/opposite party took out an application under Order 6 Rule 17 of the Code of Civil Procedure (hereafter 2 C.P.C. for short) praying for amendment of plaint by incorporating certain properties allegedly left out at the time of institution of the suit. By an Order dated 6th June, 2017, the learned Trial Judge allowed the said application for amendment of plaint. The said order dated 6th June, 2017 was challenged by the defendant no. 1/petitioner before this Court in a revisional application being C.O. 3379 of 2017.
A Co-ordinate Bench of this Court disposed of C.O. 3379 of 2017 on 21st June, 2018 with the observation that the proposed amendment was absolutely necessary for determination of the controversies as regards partition of entire properties left out by the said Durga Prasad Bhotika, since deceased. However, the Hon'ble Judge was of the view that the said application for amendment of plaint was not drafted in proper format inasmuch as the schedule of the property which was sought to be incorporated in the plaint by way of amendment should take place after the prayer portion of the plaint. Accordingly, the plaintiff was given opportunity to file proper application for amendment of plaint on the basis of the observation made in the Judgement of C.O. 3379 of 2017.
In terms of the said order passed by this Court, the plaintiff filed a fresh application for amendment of plaint and by order impugned, the learned Trial Judge allowed the said application for amendment of plaint.
The defendant no. 1 again approached this Court by filing the instant revision to consider legality, validity and propriety of the impugned order dated 8th April, 2019.
It is submitted by Mr. Sen, learned Advocate for the petitioner that in the partition suit the wife of the said Durga Prasad Bhotika was impleded as defendant no. 7. The said defendant no. 7 died during the pendency of the suit leaving behind a Will. By dint of the said Will she bequeathed the 3 property which was inherited by her from her husband in favour of some of the legatees. It is also submitted by Mr. Sen that the plaintiff was deprived from any share in the property which was inherited by defendant no. 7, since deceased.
According to Mr. Sen, the property in respect of which a probate proceeding is pending cannot be brought into the hotchpotch of the partition suit. Therefore, entire application for amendment of plaint ought not to have been allowed by the learned Court below.
Mr. Sakya Sen, learned Advocate for the opposite party no. 1, on the other hand, submits that the plaintiff/opposite party no. 1 did not come out with an application for amendment of plaint afresh. She was given liberty to file fresh application for amendment of plaint by virtue of the Judgement passed in C.O. 3379 of 2017 in proper manner and correct format, which she filed and the same was allowed by the learned Trial Court.
In order to substantiate his contention, learned Counsel for the opposite party no. 1 draws my attention to the Judgement passed in C.O. No. 3379 of 2017. I have carefully perused the said Judgement. It is ascertained that this Court while considering the propriety of order dated 6th June, 2017 virtually allowed the prayer for amendment of plaint made by the plaintiff/opposite party no. 1. By passing the impugned order the learned Trial Judge practically complied with the direction passed by this Court with regard to amendment of plaint.
Having heard the learned Counsels for the petitioner and the opposite party and on perusal of the order impugned as well as the Judgement passed in C. O. 3379 of 2017, I am of the view that the question as to the legality, propriety and validity of the prayer for amendment of plaint was already considered by this Court in the earlier revisional application. The opposite 4 party filed a fresh application for amendment of plaint which was allowed by the learned Trial Judge by the order impugned, in compliance with the direction made in C.O. 3379 of 2017. At this stage, the petitioner cannot raise any objection against such prayer of amendment of plaint.
The learned Advocate for the petitioner has raised question with regard to the further proceeding of the partition suit in view of pendency of probate case between the parties involving some of the properties which were incorporated in the hotchpotch of the suit for partition by way of amendment.
I am in agreement with the submission made by the learned Advocate for the opposite party that in the instant proceeding this Court has no scope to consider such objection raised by the petitioner in order to criticize the order impugned. The petitioner was given opportunity to file additional written statement in the Court below. He can raise such objection in his additional written statement if he is so advised but due to the pendency of a probate proceeding, question cannot be raised with regard to the validity, legality and propriety of an order of amendment in a suit for partition.
In view of such circumstances, I do not find any merit in the instant revision. Accordingly, the revisional application is dismissed on contest, however, without cost.
Urgent photostat certified copy of this order, if applied for, be given to the learned Advocates for the parties on the usual undertakings.
(Bibek Chaudhuri, J.)