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2012 Supreme(Cal) 1040
IN THE HIGH COURT OF CALCUTTA
Soumen Sen, J.
CLS Limited & Anr. - Petitioners
Versus
Ashok Jatia & Ors. - Opposite Parties
C.O. 2370 of 2011 With CAN 105 of 2012
Decided on : 21-03-2012.
For the Petitioners:Bidyut Kumar Banerjee and Pingal Bhattacharya, Advocates.
For the Opposite Parties :Kumar Jyoti Tiwari and Yunus Mondal, Advocates.
The court has the discretion to allow amendment of pleadings at any stage of the proceedings, provided that the amendment is necessary to determine the real controversy between the parties and does not cause prejudice to the other side.
Headnote:
CIVIL PROCEDURE - Amendment of pleadings - Order 6, Rule 17 read with Section 151 - Application for amendment of plaint - Amendment sought to correct measurement of scheduled property - Conditions for allowing amendment - Due diligence - Prejudice to other side - Court's discretion.
Fact of the Case:
Plaintiffs in a suit for declaration of tenancy rights sought to amend the plaint to correct the measurement of the scheduled property. The application was rejected by the trial court on the ground of lack of due diligence. The plaintiffs filed a revisional application challenging the order of rejection.
Finding of the Court:
The court held that the amendment sought was necessary to determine the real controversy in the suit and would not prejudice the defendants. The court allowed the amendment on condition that the plaintiffs pay costs of Rs.7,000/- to the opposite parties.
Issues: 1. Whether the plaintiffs exercised due diligence in applying for amendment of the plaint? 2. Whether the amendment sought would prejudice the defendants? 3. Whether the court should have allowed the amendment in the interest of justice?
Ratio Decidendi: 1. The court held that the plaintiffs did not exercise due diligence in applying for amendment of the plaint, as they could have filed the application soon after 2007. 2. The court held that the amendment sought would not prejudice the defendants, as it only related to the measurement of the suit premises and would not change the nature and character of the suit. 3. The court held that the amendment should be allowed in the interest of justice, as it would enable the court to pass an implementable order and avoid mis-description of the property.
Final Decision: The court allowed the revisional application and permitted the plaintiffs to file the amended plaint within a week from the date of payment of costs.
Soumen Sen, J.
The order rejecting an application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure is the subject matter of challenge in this revisional application. The reason for rejecting the application, in short, was that the plaintiffs applied for amendment after commencement of trial and at the stage of argument. The defendants concluded their argument and the plaintiffs were also about to conclude their argument. The plaintiffs became aware of the actual measurement of the suit scheduled property after the written statement was filed and even at the stage of cross-examination of D.W.1 but did not exercise due diligence to amend the measurement of the suit schedule and the petition was filed at a much belated stage.
2. The plaintiffs in the suit prayed for declaration that the plaintiff no. 1 is still continuing as a monthly tenant in respect of an area of 4415 Sq. Ft. at the 1st floor of Premises no. 1A, Janki Shah Road, P.S. Hastings, Calcutta-22 along with other reliefs in the nature of permanent and mandatory injunction.
3. The plaintiff no. 1 in the suit claims to be tenant under the defendant nos. 2 to 7. It was alleged that on the basis of some amicable arrangement the plaintiff no. 1 agreed to surrender the said tenanted partition on an express understanding that the plaintiffs would be accommodated in the newly constructed building with more or less the same area which they were in occupation prior to vacating the said premises.
4. The defendants filed the written statement in August, 2007 in which dealing with the allegations made in paragraph 26 of the plaint the said defendants alleged as follows:-
"26. With reference to paragraph 19 and 20 of the plaint this defendant denies and disputes the statements made therein and put the plaintiffs to strict proof thereof. After surrendering the tenancy right plaintiff No. 1 has no interest at premises No. 1A, Janki Shah Road P.S. Hastings, Kolkata- 700 022 and the same would be corroborated from the minutes of the meeting of the directors of the plaintiff No.1 held on 31st August, 2005. Plaintiff No. 1 has no right, title and interest at premises No. 1A, Janaki Shah Road P.S. Hastings, Kolkata- 700 022 and as such question of depriving the plaintiff No. 1 of its legitimate right of tenancy of an area of 4415 square feet does not and cannot arise at all. After demolishing the old building new building has come up and first floor of the new building comprises approximately of 3200 sq. ft. only. Plaintiffs have not mentioned the suit property properly for which suit should be dismissed with costs."
5. Thereafter the suit proceeded and there is no dispute with regard to the fact that the trial had commenced and almost concluded. The suit is at the stage of argument.
6. The defendants submit that they have concluded their arguments and the plaintiffs were to give reply. It was at this stage of the plaintiffs filed an application under Order 6, Rule 17 of the C.P.C. on the ground that in course of argument, the plaintiffs for the first time became aware of the fact that the entire first floor of the newly constructed building does not consist of 4415 Sq. Ft. (as it was in the previous building) but as per the sanction plan the existing 1st floor is having an area of 3200 Sq. Ft.
7. It was in view of the contention raised by the defendants that even if a decree is passed, the same could not be executed by reason of mis-description of the suit property, such amendment became necessary. The defendants filed written objection and contended that such fact was known to the plaintiffs even before the commencement of the trial and the application is required to be dismissed since it lacks bona fide. The plaintiffs in their reply, however, made an overturn and tried to improve upon the statement initially made in paragraph no.3 to the said application for amendment and this time they contended that due to oversight and/or bona fide mistake they erroneou
