Calcutta High Court (Appellete Side)
Mr. Ratanlal Agarwal vs Smt. Saroj Devi Hussarwala & Ors on 7 June, 2022
Author: Subhasis Dasgupta
Bench: Subhasis Dasgupta
07.06.2022
Item No.3
Ct. No.7
CHC
C.O.353 of 2020
Mr. Ratanlal Agarwal
Vs.
Smt. Saroj Devi Hussarwala & ors.
Mr. Supratim Laha,
Mr. Bikash Shaw
...for the petitioner
Mr. Arijit Bardhan,
Ms. Deblina Chattaraj
...for the opposite party nos.2 and 3
By a common order dated 5th December, 2019,
learned Civil Judge (Senior Division), at Purulia, in
Title Suit No.72 of 2017 has disposed of as many as
three applications including an application for
amendment under Order 6 Rule 17 C.P.C.
Mr. Supratim Laha, learned advocate appearing for
the petitioner at the very onset candidly submits that
though by a common order three applications have
been disposed of including the rejection of prayer for
amendment, but his submission would be purely
restricted against the rejection of the prayer for
amendment, and no other matters.
Mr. Laha, learned advocate appearing for the
petitioner submits that the court below has
erroneously rejected the prayer for amendment in a
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case, when there has been no commencement of the
trial.
It is the case of the petitioner that in a suit for
partition, pending before the court below, after filing of
written statement, the prayer for proposed amendment
was made for having incorporated some facts
pertaining to execution of a Will by the deceased father
of the petitioner bequeathing suit properties in favour
of the petitioner. As the petitioner gathered knowledge
about existence of the Will only in the year 2018, and
immediately upon knowing such facts, a necessity then
arose to file an application for the proposed
amendment of the written statement.
It is contended by the learned advocate for the
petitioner that the learned court below has rejected the
prayer for amendment under an hypothetical approach
bearing in mind the pendency of a probate proceeding
pertaining to the Will under reference, which is
contrary to law.
Per contra, Mr. Bardhan, learned advocate
appearing for the opposite parties/plaintiffs no.2 and 3
submits that the case of the opposite parties is based
on inheritance, while the case of the opposite parties is
founded on the story of having been favoured with the
suit property on the strength of a Will being executed
by the deceased father.
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Mr. Bardhan strongly disputes with the existence of
the Will and denies the same as regards claim of share
in the suit property.
Adverting to paragraph-'11' of written statement,
Mr. Bardhan submits that there has been fair
admission, as regards claim of inheritance of the
opposite parties in respect of the suit property, and as
such, in spite of clear and conspicuous admission of
the case of the opposite parties, based on inheritance,
the proposed amendment should not be allowed.
Supporting the order of the court below, Mr. Bardhan
submits that there lies nothing to be interfered with.
Incidentally, Mr. Bardhan proposes for trying both
the cases i.e. the instant suit and the probate
proceeding analogously, for the fair adjudication of the
matter in controversy between the parties.
As regards the proposed analogous trial, the same is
not addressed by this Court, and it is left to be decided
by appropriate court in connection with appropriate
proceeding.
Though there has been clear admission of the claim
of inheritance in w.s. as regards the suit property, but
merely with the introduction of a story, as regards the
alleged claim of share in the suit property, on the
strength of Will being executed by the deceased father
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of the opposite parties, there would not be any change
in the nature and character of suit.
In the event of the proposed amendment of written
statement being allowed, the opposite parties could not
be treated to be remediless, as the right of cross-
examination will be there during trial to controvert
such proposed amendment.
More so, the court below is free to frame additional
issue on such score, if needed, irrespective of the
pendency of the probate proceeding, if there be any.
Since the proposed amendment would not cause
any change in the nature and character of the suit, the
Court below ought to have allowed the proposed
amendment. Though it is proposed at the belated
stage, but the same should have decided in affirmative
with some compensatory costs.
The prayer for proposed amendment of original
written statement, filed on 16th September, 2017, is
thus allowed upon setting aside the relevant portion of
the order, dated 15th December, 2019, passed in Title
Suit No.72 of 2017, rejecting the prayer for amendment
of original written statement with costs of Rs.10,000/-
(Rupees Ten Thousand) to opposite parties, to be paid
by the petitioner within fortnight from the date of
communication of this order.
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Petitioner is directed to make communication of this
order to the court below.
The amended copy of written statement may be
furnished before the court below upon deposition of
costs within a week thereafter.
With this observation/direction, the revisional
application stands disposed of.
Urgent certified photostat copy of this order, if
applied for, be given to the parties as expeditiously as
possible on compliance of all necessary formalities.
.
(Subhasis Dasgupta, J.)