Calcutta High Court (Appellete Side)
CO/3516/2018 on 31 January, 2019
1 Sl. January C.O. 3516 of 2018
4. 31, 2019 Mr. Shyamal Sanyal, Mr. Somnath Banerjee, ...for the petitioners.
Mr. Suhrid Sur, ...for the opposite parties no. 1 to 3.
The affidavit of service filed on behalf of the petitioners is taken on record. Despite service, none appears on behalf of the opposite parties apart from the opposite parties no. 1, 2 and 3.
The petitioners, being the plaintiffs in a suit for declaration and permanent injunction, have challenged an order whereby the trial court recalled a previous order allowing amendment of the plaint and the injunction application on the ground that proper amended plaint and amended injunction application were not filed by the plaintiffs/petitioners.
It appears, upon hearing both sides, that the so-called amended plaint and amended injunction application filed by the petitioners were palpably different from the amendment which was allowed by the trial court. The error was a technical one and, although the trial court was correct in what it did, another opportunity ought to be given to the petitioners to file a proper amended plaint and amended injunction application in terms of the amendment allowed. Since the original amendment order was not challenged before any forum and attained finality, it would be gross injustice if the petitioners were precluded from filing the amended plaint and injunction application on a mere technical ground. However, the harassment caused to the opposite parties no. 1 to 3 ought to be compensated by costs.
Accordingly, the revisional application bearing C.O. 3516 of 2018 is allowed, thereby setting aside the impugned order and permitting the petitioners to file their amended plaint and amended injunction application within one week from date, pursuant to the order of amendment originally 2 passed by the trial court. In default of doing so within such time-frame, the impugned order shall stand revived and the present revisional application shall be deemed to be rejected without any further reference to this court. In the event such amended plaint and amended injunction application are filed by the petitioners within the time as indicated above, the opposite parties shall file their additional written statement to the amended plaint and additional written objection to the amended injunction application within a fortnight thereafter.
The trial court is requested to make all endeavour to dispose of the suit itself as expeditiously as the business of the said court permits.
The above order is subject to costs of Rs. 5,000/- to be paid by the petitioners to the opposite parties no. 1 to 3, also within one week from date, in default of which payment also the present revisional application shall stand automatically rejected without any further reference to this court, consequentially reviving the impugned order.
( Sabyasachi Bhattacharyya, J. ) Dns