Calcutta High Court (Appellete Side)
Iktiyaruddin Molla @ Iktiyaruddin Ali ... vs Abdul Bari Molla & Ors on 19 April, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 233 19.4.12
C.O. 2272 of 2008 jb.
+ CPAN 1230 of 2011 Iktiyaruddin Molla @ Iktiyaruddin Ali Ahmed & Ors.
vs. Abdul Bari Molla & Ors.
Mr. Sandip Dam .... For the Petitioners Mr. Suprabhat Bhattacharyya, Mr. Sujit Chatterjee .... For the Opposite Parties Re: CPAN 1230 of 2011 Having regard to the fact that by an order dated 18th August, 2009 all further proceedings in the suit was stayed by a learned single Judge of this Hon'ble Court, it was not open for the learned Civil Judge, Junior Division, First Additional Court, Diamond Harbour to dismiss the suit on the ground that the plaintiffs have failed to produce the certified copy of the said order. The facts remains that the said order was passed in presence of the opposite parties and it was also the duty of the opposite parties to assist the Court by bringing on record the correct state of facts.
2In view thereof, the order of dismissal passed by the learned trial Judge is set aside. Since the said order is set aside no order need be passed in CPAN 1230 of 2011 and the same is accordingly disposed of.
Re: C.O. 2272 of 2008 The application for amendment of the plaint by way of rectifying the schedule of the suit property was dismissed by the trial Judge on the ground that the procedural law was in favour of the defendants and against the plaintiffs. The learned civil Judge has addressed a wrong question and thereby arrived at a wrong answer. The learned trial Judge has failed to appreciate that by the proposed amendment, the plaintiffs want to bring certainty to the schedule property, in view of the vagueness alleged by the defendants in the written statement and also in the evidence. It is true that the plaintiffs should have been more prudent and diligent in indicating the suit property with more precision and accuracy. But that cannot take away the right of the plaintiffs to amend the schedule 3 property since even for the Court adjudicating such issue there should be a certainty in the decree if ultimately the suit succeeds, otherwise it would give rise to future complications.
In view thereof, the order dated 20th February, 2008 is set aside. The trial Court should permit such amendment within a period of two weeks from the communication of this order and pass appropriate order with regard to the said proceeding. However, this order is not unconditional. The plaintiffs must pay cost assessed at Rs.4,000/- to the opposite parties ( @ Rs.2,000/- each to the contesting parties). Such cost should be paid within a week from date. Upon payment of such cost, the said amendment would be allowed. However, in the event such cost is not paid, there would no necessity to implement this order and in that case the impugned order would revive immediately.
The revisional application is thus disposed of. 4 There shall be no order as to costs.
Certified photostat copy of the order, if applied for, be given to the parties on usual undertaking.
(Soumen Sen, J.)