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1995 Supreme(Cal) 228
High Court Of Calcutta
BASUDEVA PANIGRAHI
SANTOSH KUMAR HUI - Appellant
Versus
PRAKASH KUMAR PALIT - Respondent
C. O. 1698 Of 1992
Decided On : 07/04/1995
AMITAVA PYAL, BARADHAN BANERJI, BHASKAR BHATTACHARYA, GOPAL CH.MUKHERJEE, SANGHA MITRA NANDI, SUBRATA ROY
An amendment to a pleading should not be allowed if it would substantially alter the nature and character of the suit, as this would cause prejudice to the defendants.
Headnote:
{'KEYWORD': 'AMENDMENT OF PLEADINGS', 'SUBJECT': 'CIVIL PROCEDURE CODE, ORDER 6 RULE 17', 'ACT SECTION LIST': ['ORDER 6 RULE 17 OF THE CODE OF CIVIL PROCEDURE']}
Fact of the Case:
Plaintiff filed a suit for specific performance of contract for the purchase of a property and sought compensation for interest on the advance paid. Defendant No. 2 purchased the property from Defendant No. 1 while the suit was pending. Plaintiff filed an amendment petition to claim pre-emption right under the West Bengal Land Reforms Act.
Finding of the Court:
The court held that the amendment sought by the plaintiff would substantially alter the nature and character of the suit, as it introduced a new cause of action based on pre-emption rights, which was inconsistent with the original claim based on a contractual right.
Issues: Whether the amendment sought by the plaintiff would substantially alter the nature and character of the suit.
Ratio Decidendi: The court relied on the principle that an amendment should not be allowed if it would change the nature and character of the suit, as this would cause prejudice to the defendants. The court also held that the plaintiff's claim for pre-emption rights was barred by limitation, as he had not filed an application within the prescribed time.
Final Decision: The court dismissed the petition and affirmed the order of the Additional District Judge, which had rejected the plaintiff's amendment petition.
( 1 ) THIS petition, which arises out of an application under Article 227 of the Constitution of India, is directed against an order dated 14-3-1992 in C. R. 61 of 1991 of the Additional District Judge, Hooghly allowing the revision rejecting the prayer for amendment of the pleading filed by the petitioner.
( 2 ) THE petitioner (hereinafter referred to as plaintiff) filed a suit for specific performance of contract in Title Suit No. 135 / 87 before the lst Court of learned Munsif at Chinsurah, Hooghly against the respondent / opposite party (hereinafter referred to as defendant) inter alia, for compensation by way of interest at the rate of l5% on Rs. 1,000 / - from 2/02/1986 together with other consequential reliefs. It is stated by the plaintiff that the defendant / opposite party No. 1 had his land adjacent to residential house of the plaintiff on the North of the suit property. Since the defendant No. 1 was residing at a far-off place intended to sell the suit property. It is stated by the plaintiff that since he is the adjoining owner of disputed plot expressed his desire to purchase the same at Rs. 9,500. 00- which was agreed to by the defendant. The plaintiff paid a sum of Rs. 1,000. 00- as advance or earnest money towards the purchase of the suit property. It was further agreed between the plaintiff and the defendant No. 1 that the latter would receive the balance consideration of Rs. 8,500. 00- at the time of the registration of the sale deed and the registration of the document would be completed within a year after obtaining necessary permission from the Urban Land (Ceiling Regulation) Authority. The defendant No. 1 also delivered possession of the suit property to the plaintiff who was the prospective purchaser.
( 3 ) IN or about June 1987, the plaintiff heard a rumour in the village that there was a clandestine talk between the defendant No. 1 and defendant No. 2 and the latter agreed to purchase the same. The plaintiff immediately after having come to know about such proposal approached the defendant No. 2 with the mediation of one Sri Ajit Banerjee to dissuade him from purchasing the same inasmuch as there was a subsisting contract between the defendant No. 1 and plaintiff for the purchase of the suit land. But the defendant No. 2 seemed to be obstinate and was bent upon to purchase the same at a consideration of Rs. 15,000/ -. Therefore, the plaintiff has filed the suit for specific performance of contract.
( 4 ) BOTH the defendants entered appearance before the learned Trial Court. The defendant No. 1 advanced a plea that the plaintiff being an adjacent owner had an greedy eye on the suit property. There was no proposal farless an agreement for sale of the suit land to the plaintiff. The defendant No. 2 had already purchased the suit properties under two registered sale deeds dated 25-9-1986 and 29/10/1986 and took delivery of the possession from the defendant No. 1. Therefore, the suit at the behest of the plaintiff is not maintainable which is of speculative nature. During the pendency of the suit, the plaintiff filed an amendment petition under Order 6, Rule 17 of the Code of Civil Procedure on 22/02/1990. In the said petition the plaintiff stated to have come to know about the sale deed executed in favour of defendant No. 2 by the defendant No. 1 only after filing of the written statement. Since the plaintiff is a contiguous owner entitled to the right of pre-emption. The said amendment sought by the plaintiff in the opinion of the Munsif did not change nature and character of suit, hence he allowed the same. The defendant being agrieved by such order, preferred revision before the District Judge, Hooghly which, inter alia, was transferred to the Court of Additional District Judge who allowed the same and rejected the amendment petition filed by the plaintiff.
( 5 ) MR. Bhaskar Bhatterjee (Bhattacharga), the learned counsel appearing for the petitioner, impugned the order passed
