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High Court of Calcutta
Harish Tandan, J.
Jayasri Guha – Appellant
Versus
Sukla Ghosh – Respondent
C.O. No.2275 of 2011
Decided on : March 21, 2012
AMENDMENT OF WRITTEN STATEMENT - ADMISSION - WITHDRAWAL - DUE DILIGENCE - REVERSION - RELINQUISHMENT - MUTUALLY DESTRUCTIVE PLEAS - CIVIL PROCEDURE CODE, 1908 - ORDER 6 RULE 17 - PROVISO.
Fact of the Case:
The petitioner filed an application to amend her written statement in a suit for partition upon declaration of their share, seeking to incorporate averments relating to the relinquishment of the right, title, and interest by the deceased Provanani Debi in respect of the suit property. The trial court rejected the application, holding that there was no reason assigned in the application for amendment with regard to due diligence.
Finding of the Court:
The court held that the proviso inserted to Order 6 Rule 17 of the Code of Civil Procedure (Amendment) Act 2002 was intended to curb the amendment of the pleadings once the trial has commenced. The court further held that the petitioner had not provided a sufficient explanation for not raising the issue of relinquishment before the commencement of the trial.
Issues: 1. Whether the amendment application was necessary for the determination of the real disputes in the suit. 2. Whether the petitioner had shown due diligence in not raising the matter before the commencement of the trial. 3. Whether the proposed amendment was mutually destructive of the admission made in the written statement.
Ratio Decidendi: 1. The court held that the amendment application was not necessary for the determination of the real disputes in the suit, as the petitioner had already made a specific case of reversion in the written statement, which was mutually destructive of the plea of relinquishment. 2. The court held that the petitioner had not shown due diligence in not raising the matter before the commencement of the trial, as the reason given in the amendment application was insufficient. 3. The court held that the proposed amendment was mutually destructive of the admission made in the written statement, as it sought to withdraw the admission of reversion and replace it with a plea of relinquishment.
Final Decision: The court dismissed the revisional application, holding that the trial court had not erred in rejecting the amendment application.
Harish Tandon, J.
1. THIS revisional application is directed against the order dated 25.5.2011 passed by the learned single Judge (Senior Division), 10th Court, Alipur in Title Suit No. 2230 of 2008 by which an application for amendment of the written statement was rejected.
2. THE plaintiff/opposite party filed the aforesaid-mentioned Title Suit for partition upon declaration of their share. THE case made out in the plaint is that the parties to the suit are the joint owners of all that the premises No. 1/1 and 1/2 Hindustan Park Road, Kolkata - 700 019. THE said premises was initially owned by one Narayan Chandra Ghosh who built the two-stories building on premises No. 1/2 Hindustan Park Road and kept the premises, No. 1/1 Hindustan Park Road as vacant. THE said owner died in the year 1958 leaving his mother Provanani Debi, his widow Bina Ghosh, the original defendant No.1, son Dipak Ghosh and a daughter Smt. Jayasri Guha (Nee Ghosh), the defendant No.2. Each of the aforesaid heirs inherited the property left by the said deceased in equal proportion i.e. undivided 1/4 share each. THE said son who was unmarried subsequently died and his share devolved upon his mother that is the original defendant No. 1 and she became the owner of the 1/2 share in respect of the suit property. Upon the death of Provanani Debi her undivided a share devolved upon her surviving son namely Hemchandra Ghosh and a granddaughter namely Jayasri Guha (Nee Ghosh), the defendant No.2. Upon the death of Hemchandra Ghosh his share devolved upon his widow and upon her death it further devolved upon the plaintiff being the widow of the pre-deceased son of the said Hemchandra Ghosh. THE plaintiff therefore claims to be the owner of undivided 1/8 share in respect of the suit property.
3. INITIALLY the said suit was institute by the plaintiff being the opposite party herein against the said Bina Ghosh, since deceased and the Jayasri Guha (Nee Ghosh) the petitioner herein but during the pendency of the suit the said original defendant No. 1 namely Bina Ghosh died and her share devolved upon the petitioner being the surviving daughter.
4. WHEN the original defendant No.1 was alive, joint written statements were filed by the said defendant and the defendant No.2 being the petitioner herein before the trial Court. A specific defence is taken in the said written statement that upon the death of the said Provanani Debi in the year 1973 her undivided share in respect of the suit property was reverted back to the original owner or his legal heirs namely the defendants therein.
5. THE suit was thereafter posted at the preemptory board and affidavit as to examine in chief was filed by the plaintiff/ opposite party on March 30, 2010: THE said witness was cross-examined by the defendants/petitioner and was ultimately discharged. Thereafter the defendant/petitioner filed her affidavit as to examination in chief and was discharged upon cross- examination by the plaintiff/petitioner on December 3, 2010. THE said witness who adduced evidence on behalf of the defendant/petitioner was recalled and was re-examined and subsequently a date was fixed for argument.
6. AT this stage an application for amendment of the written statement was filed by the defendant/petitioner seeking to amend the written statement. By the proposed amendment the defendant/petitioner tried to incorporate certain averments relating to the relinquishment of the right, title and interest by the said Provanani Debi in respect of the suit property.
7. WHILE opposing the said application, the plaintiff/opposite party took a specific objection that the admission made by the defendant/petitioner in the written statement cannot be withdrawn. It is further contended that after the closure of the evidence of the parties and at the argument stage, such amendment should not be allowed as it would reopen the entire issue. Lastly is stated that there is no explanation/reason given in the application for amendment
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