The court held that the amendment of the written statement was necessary for a proper and fair adjudication of the dispute between the parties. The court also held that the defendants were not lacking in due diligence in not bringing the said facts or documents on record. The court further held that the proposed amendments are necessary for a proper and fair adjudication of all the disputes between the parties.

JUDGMENT :

Soumen Sen J.

1. The order refusing amendment of written statement after 26 questions had been put to the witness of the plaintiffs is the subject matter of challenge in this appeal.

2. The short question that arises in this appeal is whether in view of the newly inserted proviso to the amended provision of Order VI Rule 17 of the Code of Civil Procedure, the Court has jurisdiction to allow amendment of pleadings after the commencement of trial; and if at all the court has to exercise any such discretion, whether the appellant was able to make out a case that in spite of due diligence, the appellant was unable to raise the matter forming the subject matter of amendment before "commencement of trial".

3. The fact that the appellants had applied for amendment of written statement after the witness on behalf of the plaintiffs has been partly examined is not in dispute.

4. Before we advert to the submissions made on behalf of the parties with regard to the applicability of the newly added proviso to Order 17, it is necessary for us to consider the explanation offered for delay in applying for amendment and to examine how far the plaintiffs would be prejudiced at the trial if such amendment is allowed at this stage, keeping in mind that the purpose of amendment is to facilitate the court to determine the real question in controversy between the parties.

5. On or about 2013, the plaintiffs filed a suit against the appellants praying inter alia, for a decree for eviction and mesne profits.

6. The case of the plaintiffs, in short, is that the plaintiff no. 1 is a partnership firm which has been a tenant with respect to two adjacent connected godowns being nos. 7D and 7E at 10, Portuguese Church Street, Kolkata - 700 001, under Imambara Trust Estate of Late Aga Karabarai Mohammad (hereinafter referred to as "the said godowns"). The plaint states that from 1944 to 1992-1993, the plaintiff no. 1 has been carrying on business and using the said two godowns for its business purposes. On 27th August 2004, it appointed the defendant for looking after the said godowns. A caretaker agreement was entered into between them and a general power of attorney was also signed. On 20th December 2011, the plaintiff nos. 2,3,4,9 & 10, the partners of the partnership firm, cancelled the said caretaker agreement and the power of attorney. It is the contention in the plaint that in spite of the cancellation of the caretaker agreement and the power of attorney, the defendants have not vacated the said godowns. It is contended that since 21st December 2011, the defendants have been in wrongful occupation of the said godowns. Accordingly, the plaintiffs are claiming a decree of eviction against the defendant along with mesne profits.

7. The appellant/defendant has filed a written statement on 23rd June, 2014. The essential defences disclosed by the appellant in its written statement are that the suit is not maintainable for lack of pecuniary jurisdiction and that the plaintiffs do not have any right to evict the defendants from the suit premises as they have surrendered the tenancy upon accepting consideration for the same and intimating the defendants that the tenancy would be transferred in their names. The crux of the defence is that the plaintiffs have no right over the property in question and therefore could not bring an action for evicting the defendant. Paragraph 5 of the written statement states that the eviction could not be carried out then the plaintiffs have transferred the property, for consideration, to the appellant/defendant. Paragraph 6, which is broken up into numerous sub- paragraphs, lists out the details of how this transfer has allegedly taken place. The amendments sought to be made in the present application adds certain sub-paragraphs to paragraph 6 and also seeks to newly insert paragraph 10A to the written statement. These paragraphs are therefore of crucial importance, and discussed in the later part in this judgment.

8. Subsequen