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IN THE HIGH COURT AT CALCUTTA
Prabodh Dinkarrao Desai, and Ajit Kumar Sengupta, JJ.
Smt. Lakshmi Devi Jindal - Petitioner
Versus
Smt. Chandra Kanta Sah & Ors. - Opposite Parties
Civil Order No. 3133 of 1988
Decided On : January 11, 1989
CIVIL PROCEDURE - Amendment of Plaint - Order allowing amendment passed without affording opportunity to contest - Material irregularity - Order set aside - Civil Rules and Orders Volume I, Rules 21 and 24.
Fact of the Case:
Plaintiff filed an application for amendment of the plaint to introduce a description of the boundaries of the suit property in the Schedule annexed to the plaint. The application was allowed ex parte on the same day without affording an opportunity to the defendants to contest the same.
Finding of the Court:
The Trial Court acted with material irregularity in the exercise of its jurisdiction in allowing the application for amendment ex parte on the same day on which it was presented and in finally disposing of the said proceeding in that manner.
Issues: Whether the Trial Court erred in allowing the amendment of the plaint without affording an opportunity to the defendants to contest the same?
Ratio Decidendi: An order allowing amendment could not have been passed in the manner in which it was done in the present case having regard to all the attendant circumstances. The order in question allowed an amendment being carried out in the plant with a view to introducing the description of the boundaries of the suit land in the Schedule annexed to the plaint. It is settled law that it is the description of the boundaries which ultimately prevails in case a dispute arises as to the identification of the disputed property or its measurements. There was already an allegation by the plaintiff regarding Defendant Nos. 6 to 9 having violated the order of ad-interim injunction passed earlier concerning the suit property. The precise description of the suit property along with the measurements and boundaries was thus a matter of vital significance at the stage when the amendment was allowed especially since the parties were again directed to maintain the status quo as regards the suit property as described in the amendment application. Under the circumstances, the prayer seeking introduction of the description of the boundaries of the suit property in the Schedule annexed to the plaint was not of a purely formal nature. In our opinion the Trial Court acted with material irregularity in the exercise of its jurisdiction in allowing the application for amendment ex parte on the same day on which it was presented and in finally disposing of the said proceeding in that manner. If such an order is allowed to stand, it would occasion a failure of justice.
Final Decision: Order No. 41 allowing the amendment of the plaint was set aside and the Trial Court was directed to fix the hearing of the application for amendment at an early date and to dispose of the same preferably within a month.
Desai, C. J.
These four Revision petitions are directed against four different orders passed by the Trial Court in the course of the same suit. Since they raise certain common questions, they have been heard together and they are being disposed of by this common judgment.
2. For the sake of convenience, the parties in all these cases will be referred to in the course of this judgment as per their respective arraignment in the suit, that is, at the plaintiff and the defendants, as the case may be.
3. The petitioner in C.O. No. 3132 of 1988 and C.O. No. 3133 of 1988 is Defendant No. 8. The petitioner in C.O. No. 3138 of 1988 and C.O. No. 3139 of 1988 is the plaintiff.
4. A few facts require to be stated in order to appreciate the• controversy between the parties in these proceedings. The plaintiff filed the suit out of which these revisions petitions arise, being Title Suit No. 11 of 1988 pending in the Court of the Second Assistant District Judge, Howrah praying for the declaration of his 1/9th share in the suit property and the appointment of a Commissioner to make partition by metes and bounds and for injunction. Annexed to the plaint was the Schedule of suit property which was described with reference to its J.L. numbers, Khatian numbers and Dag numbers and its total area was mentioned in terms of acres. No description of the boundaries of the suit property was given in the Schedule.
5. The Plaintiff tendered in the Trial Court an application for amendment of the plaint on September 29, 1988. The purport of the said application was to introduce in the Schedule annexed to the plaint a description of the boundaries of the suit property. The application was taken up for hearing and Order No. 41 was passed thereon on the same day allowing the amendment as prayed and simultaneously directing the maintenance of status quo as regards the suit property as described in the application for amendment. Neither Defendant No. 8 nor his Counsel was present when the order was passed. C.O. No. 3132 of 1988 preferred by him is directed against the said Order No. 41 dated September 29, 1988.
6. Defendant No. 9 filed an application purporting to be one under section 151 of the Code of Civil Procedure, on or about November 25, 1988, praying that the ex parte Order No. 41 passed on September 29, 1988 be set aside/vacated and that the plaintiff's application for amendment of the plaint be re-heard after affording a reasonable opportunity to file written objections against the same and that meanwhile the operation of the said order be stayed. Be it stated that the case set out in the said application was that a copy of the amendment application was served on his Counsel (Counsel appearing on behalf of Defendant No. 9) on September 29, 1988, that Defendant No. 9 was not present in the Court on that day and that his Counsel attended the Court at 2 p.m. to oppose the said application and to pray for time to file written objections after obtaining the necessary instructions. However, the Counsel came to know then that the Presiding Officer of the Court was not available and that no hearing of the application would, therefore take place on that day. Still, however, the Counsel waited in the Court for some time but since the Counsel for the plaintiff did not turn up be left the Court under the impression that a date for hearing of the application would be fixed in due course after giving him a reasonable opportunity to file written objections against the same. We wish to make it clear that we have merely set out the substance of the averments contained in the application made by Defendant No. 9 and that we are not expressing any opinion on the validity or otherwise of the submissions therein made. A separate application was filed by Defendant No. 9 along with the aforesaid application seeking stay of the operation of Order No. 41 dated September 29, 1988. Both these applications were taken up on November 25, 1988 in the presence of the learned Counsel
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