Calcutta High Court (Appellete Side)
Gour Mohan Bose vs Smt. Tripti Ghosh on 9 September, 2013
Author: Asim Kumar Mondal
Bench: Asim Kumar Mondal
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION C.O. NO.3174 OF 2012 In the matter of:
Gour Mohan Bose Vs. Smt. Tripti Ghosh Mr. Saswata Gopal Mukherjee Mr. Kaushik Kr. Dey Mr. Dipankar Dandipath .....for the petitioner Mr. Shyamal Chakraborty .....for the opposite parties.
Heard On : 08.08.2013.
Judgment On : 09.09.2013 Asim Kumar Mondal, J. This is an application under Article 227 of the Constitution of India.
The petitioner is defendant in an ejectment suit being No.l637 of 2000 filed by the opposite parties which is pending before Ld. Judge, 3rd Bench, Small Causes Court, Calcutta.
The suit was degreed. The petitioner preferred appeal before the Ld. Judge, 3rd Bench, City Civil Court which was registered as T.A. No.69 of 2004. Ld. Appellate Court affirmed the judgment and decree of Ld. Trial Court dated 22nd December, 2008.
Petitioner preferred second appeal being No. S.A.T 42 of 2009 before this High Court.
Opposite Party/ decree holder put the decree in execution before executing Court being Number ejectment execution case No.100/2009 and the same is pending before the Judge 3rd Bench, Small Causes Court, Calcutta.
On the date of delivery of possession, seal bailiff found that schedule of the original decree is not maching with the reality and accordingly possession could not be delivered.
The decree holder filed an amendment petition before the Ld. Executing Court praying for amendment of original plaint, rectifying the description of suit property in the schedule of the plaint.
Petitioner contested the said petition by filing written objection stating that by the proposed amendment the nature and character of the suit will be changed.
Ld. Executing Court by an order no.25 dated July 12, 2012, allowed the said amendment petition.
Being aggrieved and dissatisfied with the said order impugned, petitioner has preferred the present application on the ground that, the order impugned as clearly damaged the defence of the defendant. Thus, Ld. Court below acted illegally with material irregularities by allowing the amendment petition.
Ld. Advocate Mr. Saswata Gopal Mukherjee with Mr.Kaushik Kr. Dey and Mr. Dipankar Dandipath submit that the opposite party is proceeded with the suit since 2000. He has ignored knowing fully well about the alleged construction of the asbestos shed and alleged partition between the room. The impugned order has caused a Court prejudice to the right has accrued by the defendant. The order allowing the prayer of amendment of the schedule of the suit property at this stage of execution of the decree will change the nature and character of the suit.
In reply Ld. Advocate Mr. Shyamol Chakraborty appearing on behalf of the opposite party/plaintiff as argued and submitted that the written description of the suit property in the schedule of the plaint was discovered after passing of decree and the defendant nowhere either in the Trial Court or before the Appeal Court ever raised the plea of written description of the suit property.
It is further submitted that mistakes subsequently discovered after passing the decree may be rectified if the motion/written description of the suit property is not intentional. Ld. Advocate relied on a judgment of one of the coordinate bench of this Court reported in 2009 (3) CHN at page 160.
The executing Court may treat the application for amendment of plaint and decree made before the decretal Court and to proceed the same in accordance with law. Correction of the description of the suit property, after removing the wrong, will not change the nature and character of the suit.
Ld. Advocate relied upon the judgment of Apex Court reported in 2009 (2) ICC at page 1 and 1995 suppra (4) Supreme Court Cases 582.
I am of the view, after careful perusal of the order impugned, that the suit premises as described in the plaint remain unchanged process server could not match the property due to internal change made by the tenant without the knowledge of the Landlord.
Ld. Trial Court rightly observed that proposed amendment would not prejudice the judgment debtor in any way if same is allowed. Tenant has not claimed any independent title in the alleged changed suit property. On the contrary, he never raised the question of improper description of the suit property during the course of hearing before Trial Court as well as before Appeal Court. More so, if the amendment petition is not allowed, the decree holder will not be able to get fruits of the litigation.
I do not find that Ld. Court below has exceeded the jurisdiction and pass the order illegally. The impugned order requires no interference.
Thus, the revisional application is dismissed without costs. The order of stay if any granted by this Court stands vacated.
Urgent Photostat certified copy of this order, if applied for be given to the parties on priority basis.
( Asim Kumar Mondal, J.)