Calcutta High Court (Appellete Side)
Om Prakash Bagaria vs Lions Club Of Raiganj Eye Hospital Trust ... on 11 July, 2013
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
1
19.
11.07.2013.
F.B. C.O. 3349 of 2012 Om Prakash Bagaria
-Vs.-
Lions Club of Raiganj Eye Hospital Trust & Ors.
Mr. Arindam Banerjee, Mr. Bharat Bhushan ..... For the Petitioner.
__________ It appears from the record that in spite of service of notice upon all the opposite parties none has cared to contest this revisional application.
The plaintiff is the petitioner in this application under Article 227 of the Constitution of India. He has challenged the Order No. 27 dated 10th July, 2001 passed by the learned Civil Judge (Senior Division), Asansol in Title Suit No. 43 of 2009.
By the order impugned, learned trial Court rejected the petition of amendment filed by the petitioner/plaintiff.
Learned advocate, Mr. Arindam Banerjee appearing for the petitioner/plaintiff submits that the suit was filed by the plaintiff for declaring the Interim Enquiry Report dated 22.05.2008 and subsequent final report and the entire enquiry proceedings conducted by the Fact Finding Body to be wrongful, illegal and against the principle of natural justice, together with the prayer for injunction and other consequential reliefs. According to him, during pendency of said suit the petitioner/plaintiff came to know on 7th August, 2011 from Lion Binod Kumar Kalotia that his membership was illegally terminated and accordingly, he has prayed for incorporating said fact with further consequential prayers by way of amendment of plaint. According to Mr. Banerjee, learned trial Court rejected the same absolutely on wrong notion that said facts were not subsequent facts and/or that the same relates to a new cause of action for which a fresh suit is required to be filed. According to Mr. Banerjee, there were specific averments in the amendment petition that during pendency of said suit the petitioner/plaintiff learnt about said illegal termination of his membership and accordingly, prayed for incorporating of the same in the plaint together with other consequential 2 reliefs by way of amendment. He submits that the order impugned is not sustainable in law and should be set aside.
I have perused the application and the connected papers. I have also considered the submission of the learned advocate for the petitioner/plaintiff in the backdrop of the impugned order. There is no denial that the petitioner/plaintiff has filed the suit for declaring that the Interim Enquiry Report dated 22.05.208 and subsequent final report and entire enquiry proceedings conducted by the Fact Finding Body to be illegal and against the principle of natural justice as plaintiff was not given an opportunity of being heard. Plaintiff also prayed for an order of injunction and other consequential reliefs in the original plaint. However, the petitioner/plaintiff has filed this petition for amendment for incorporating the fact that subsequently he came to learn that his membership has been terminated and accordingly, he has prayed for incorporating said fact and consequential reliefs in the plaint through amendment. It appears that the proposed amendments will not change the nature and character of the suit. Rather it appears that the proposed amendments were the after effect of the enquiry report and enquiry proceedings being challenged in the suit. If those amendments are permitted to be allowed then the opposite parties/defendants will get fresh opportunity to file additional written statement, if any, to counter the same.
Accordingly, I am of the opinion that the order impugned is not sustainable in law as the learned Court below failed to exercise the jurisdiction so vested in him by law.
Accordingly, the revisional application is allowed. The impugned order is hereby set aside. The amendment petition filed by the petitioner/plaintiff stands allowed.
The petitioner/plaintiff should file amendment plaint in the Court below within four weeks from this date. However, if the petitioner/plaintiff fails to file said amended plaint within the time frame as stated above, the order of allowing of the amendment will stand revoked. It is needless to mention that if an amended plaint is filed within the time frame then the learned trial Court should give an opportunity to the opposite parties/defendants to file additional written statement, if any, within a time frame to be given by the learned Court below.
However, I pass no order as to costs.
Urgent photostat certified copy of this order, if applied for, be given to the learned advocate appearing for the petitioner upon compliance of all necessary formalities.
3(Tarun Kumar Gupta, J.)