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2002 Supreme(Cal) 560
High Court Of Calcutta
ARUN KUMAR MITRA
AJIT KUMAR SAHA - Appellant
Versus
ASHIT KUMAR SAHA - Respondent
C. O. 1093 Of 2002
Decided On : 08/22/2002
Dipak Kumar, JYOTIRMOY BHATTACHARYA, S.K.DAS GUPTA, SABNAM DEY
Amendment of pleadings can be allowed at any stage of the proceedings, even at a belated stage, if it is necessary for the purpose of determining the real question in controversy between the parties and if it does not prejudice the case of the other side.
Headnote:
AMENDMENT OF PLEADINGS - Probate Proceeding - Order 6 Rule 17 of the Code of Civil Procedure - Amendment Sought at a Belated Stage - Whether Amendment Should be Allowed - Principles Governing Amendment of Pleadings.
Fact of the Case:
In a probate proceeding, the petitioner, an objector to the grant of probate of a Will, filed an application to amend the objection. The amendment was sought to be made at a belated stage, after the examination of witnesses had commenced. The petitioner claimed that the amendment was necessary to resolve the controversy in the probate proceeding. The opposite parties, the executors of the Will, opposed the amendment, arguing that it would prejudice their case.
Finding of the Court:
The court held that the amendment should be allowed, despite being filed at a belated stage. The court noted that the purpose of Order 6 Rule 17 of the Code of Civil Procedure is to avoid multiplicity of proceedings and to shorten litigation. The court also noted that the amendment did not seek to displace the executors from their case or to non-suit them. The court further held that the executors would not be prejudiced by the amendment, as they could file a reply to the amended objection and fight the case on merits.
Issues: 1. Whether an amendment to pleadings can be allowed at a belated stage in a probate proceeding. 2. Whether the amendment sought by the petitioner would prejudice the case of the executors.
Ratio Decidendi: 1. The court held that an amendment to pleadings can be allowed at any stage of the proceedings, even at a belated stage, if it is necessary for the purpose of determining the real question in controversy between the parties and if it does not prejudice the case of the other side. 2. The court held that the amendment sought by the petitioner would not prejudice the case of the executors, as they could file a reply to the amended objection and fight the case on merits.
Final Decision: The court allowed the amendment sought by the petitioner, subject to the payment of costs to the executors.
( 1 ) THIS revisional application has been preferred challenging Order No. 38 dated 6-3-2002 passed by the learned Chief Judge in the City Civil Court at Calcutta in O. C. No. 5/1999. The basis of or the background on which this revisional application has been preferred is inter alia as follows :- the opposite party herein filed an application under S. 276 of Indian Succession Act, 1975 for grant of probate of the last Will and testament to the deceased Sudhir Chandra Saha, son of Late Nandalal Saha of 16a, Mondal Street, P. S. Jorabagan, Calcutta - 700 006. The said application for probate has been registered as Probate Case No. 73/1998 before the learned Chief Judge, City Civil Court at Calcutta.
( 2 ) COMING to know about the said probate proceeding, the petitioner herein raised an objection in the said proceeding for which the said case No. 73/1998 was dropped and was transferred as O. C. No. 5/1999 that is the instant case.
( 3 ) THE petitioner filed written objection on 21/05/1999. According to the petitioner, the applicants of the Will suppressed all material fact and filed this application for the grant of probate with a mala fide intention to grab the property at the back of the petitioner. In the objection it was also stated that the deceased Sudhir Chandra Saha prior to the execution of the alleged Will executed earlier two Wills in the year 1990 and 30/07/1994 which the opposite parties did not disclose in the said application.
( 4 ) ACCORDING to the petitioner, the testator (presently deceased) was aged about 87 years and since December, 1999 till his death he was fully under the control or influence of the opposite parties who were the applicants in the probate proceedings. According to the petitioner prior to his death, Sudhir Chandra Saha was admitted in Marowari Relief Society Hospital in December, 1993 and all the medical expenses and shradha ceremony expenditure was borne by the petitioner. The petitioner performed the shradha ceremony function by giving fire to the deceased Sudhir Chandra Saha as per rites and customs of the Hindu Law.
( 5 ) SUBSEQUENTLY, the petitioner filed an application under Order 6 Rule 17 of the Code of Civil Procedure read with S. 151 to amend the original objection of the application for grant of probate of the Will. That the opposite parties, however, did not file any objection to the said application for amendment of the objection and, according to the petitioner, the opposite parties have not raised any objection to the said application also as and when the learned Court allowed time for filing the same.
( 6 ) THAT the learned Chief Judge by order dated 6th March, 2002 dismissed the said application for amendment. Challenging the said order of dismissal of the application for amendment passed by the learned Chief Judge, City Civil Court at Calcutta by his order dated 6th March, 2002 in O. C. No. 5/1999, the petitioner has come up to this Court.
( 7 ) APPEARING for the petitioner, Mr. Bhattacharya submits that the order impugned is bad in law and the learned trial Judge passed the order without appreciating the provisions of Order 6 Rule 17 of the Code of Civil Procedure. The impugned order suffers from material irregularity and the learned trial Judge failed to exercise his jurisdiction by not allowing the application for amendment. According to Mr. Bhattacharya, the learned trial Judge went on wrong when making observation "want to add dimension which would change the character of this original case". Mr. Bhattacharya submits that amendment can be allowed by the Court at any stage of the proceeding and this amendment was necessary to resolve the controversy in the probate proceeding.
( 8 ) MR. Roy Chowdhury, the learned senior counsel appearing for the opposite parties/executors submits that the learned trial Judge rightly rejected the amendment application at this belated stage when some right has accrued to the petitioner/executor by virtue of init
