The court should not allow an amendment of the written statement if it is mala fide and intended to unnecessarily drag and delay the matter.

1. THIS revisional application is directed against Order No. 17 dated 17th February 2010 passed by the Civil Judge, (Senior Division), Sealdah in Title Suit No. 7 of 2009 by which an application for amendment, filed by the defendant/appellant, is rejected.

2. THE plaintiff/opposite party instituted an eviction suit, being Title Suit No. 38 of 1996, on the ground of default and own use and occupation. In paragraph 4 of the plaint, the plaintiff/opposite party categorically asserted that they are the absolute owners of the suit property.

3. IN the written statement, the defendant/ petitioner evasively denied such statement in contending that the plaintiff is not the owner of the property. No where in the written statement it was ever asserted by the defendant/petitioner that apart from him there are other heirs who have inherited the said tenancy. In paragraph 12 of the written statement, it has been categorically stated by the defendant/petitioner that he is still the tenant of the suit property. The parties adduced evidence. No where in the evidence the Court could find out that any case of non-joinder of necessary party is made out. After the suit was decreed, the defendant/petitioner assailed the same in appeal.

4. BEFORE the appellate Court, the defendant/petitioner filed an application for amendment seeking to incorporate certain averments relating to the title of the plaintiff/opposite party as well as a ground of non-joinder of necessary party as one of the heirs of the original tenant has been left out. The trial Court found such amendment would introduce a new case and ultimately rejected the said application for amendment.

5. MR. Halder, learned Advocate appearing for the petitioner, vehemently argues that if the Court finds it necessary for effective adjudication of the dispute in the suit or appeal, the Court should allow such amendment. He further submits that if no prejudice is caused to the plaintiff/opposite party and he can be compensated by imposing cost, the Court should readily allow such amendment. Mr. Halder advances an argument, before me that in absence of any one of the heirs of the contractual tenant being impleaded as a party in the suit for eviction, such suit is not competent and the decree is not sustainable. In support of his contention, he relied upon judgments of the Apex Court in the case of Textile Association (India) Bombay Unit -vs- Balmohan Gopal Kurup and Anr., reported in AIR 1990 SC 2053 and in the case of Kumar Jagdish Chandra Sinha and Ors. -vs- Eileen K. Patricia D'Rozarie (Mrs), reported in (1995) 1 SCC 164 and a Division Bench judgment of this Court in the case of Jawaharlal Saha and Ors -vs- Pradip Saha and Ors., reported in 2006 (1) CHN 513.

6. IT is further contended by Mr. Halder that Court should not look into the merit of the averments sought to be incorporated by way of amendment at the time of consideration of an application for amendment and places reliance upon the judgment of the Apex Court in the case of Rajesh Kumar Aggarwal and Ors. -vs- K.K. Modi and Ors., reported in AIR 2006 SC 1647. By contending that the Court should allow amendment of the written statement by which an additional ground of defence is sought to be taken by the defendant, reliance is placed on a judgment of the Apex Court in the case of B.K.N. Pillai -vs- V.P. Pillai and Anr., reported in AIR 2000 SC 614.

7. LASTLY, it is contended that the Court should adopt a linient approach while considering an application for amendment which is necessary by palcing reliance upon the judgments of the Apex Court in the case of Ishwardas -vs- State of Madhya Pradesh and Ors., reported in AIR 1979 SC 551 and Jai Jai Ram Manohar Lal -vs- National Building Material Supply, Gurgaon, reported in AIR 1969 SC 1267.

8. MR. Ghosh, learned Advocate appearing for the plaintiff/opposite parties, submits that the defendant/petitioner is trying to withdraw the admission made in the written statement by way of amendment,