Calcutta High Court (Appellete Side)
Shyamal Dutta vs Sanjib Auddy And Ors on 24 August, 2018
Author: Dipankar Datta
Bench: Dipankar Datta
1
24.8.2018
Kc(1)
CAN 3288 of 2018
With
CAN 3346 of 2018
In
S.A. 116 of 2017
Shyamal Dutta
-versus-
Sanjib Auddy and Ors.
Mr. P.C. Pal Chowdhury...............For the appellant/
applicant.
This second appeal at the instance of the defendant in a suit for, inter alia,
eviction and recovery of khas possession is directed against the appellate
judgment and decree dated 21st February, 2017 of affirmance of the trial Court's
judgment and decree dated 25th April, 2013.
Having heard Mr. Pal Chowdhury, learned advocate for the appellant, we
admit the appeal for answering the following substantial questions of law :
(i) Whether the first appellate court was justified in allowing the prayer
for amendment of the plaint without recording its satisfaction that
copy of the application had been served on the defendant/ appellant?
(ii) Whether having regard to the terms of the proviso appearing in Order
VI Rule 17 of the Code of Civil Procedure, the first appellate court,
despite recording that the plaintiffs/respondents from the very
beginning of the institution of the suit were aware of the facts sought 2 to be incorporated, could have at all allowed the amendment, as prayed for and uphold the decree of the trial court?
Call for the records; issue usual notices.
Re: CAN 3346 of 2018.
Pending hearing of this application, there shall be stay of all further proceedings of Ejectment Execution Case No. 87 of 2013, pending before the learned 5th Bench, Presidency Small Causes Court, Calcutta.
The appellant is directed to serve copies of the stay application on the respondents with an intimation that this application will appear for hearing before the regular Bench in the monthly list of September, 2018, subject to the convenience of His Lordship. An affidavit of service shall be filed on the next date of hearing.
(DIPANKAR DATTA, J.) (PROTIK PRAKASH BANERJEE, J.) 3 4