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2023 Supreme(Cal) 262
IN THE HIGH COURT AT CALCUTTA
AJOY KUMAR MUKHERJEE, J.
Sukumar Kanp & Others - Appellant
Versus
Khudiram Patra, since deceased, Represented by Narayan Patra & Others - Respondent
C.O. 2080 of 2021
Decided On : 15-02-2023
For the Petitioners:Suprabhat Bhattacharya, Advocate.
For the Opposite parties:Asish Chandra Bagchi, Malyasree Maity, Advocates.
The court has the power to allow amendments to pleadings in order to serve the needs of justice and to minimize litigation. The court should consider whether the amendment application is malafide, worthless, dishonest, and designed to delay legal proceedings, and if so, it should be discouraged. However, if the amendment sought is bona fide, legitimate, honest, and necessary, the court is required to decide the same accordingly.
Headnote:
AMENDMENT OF PLAINT - WEST BENGAL LAND REFORMS ACT, 1955 - SECTIONS 18(1), 21(3) - CIVIL PROCEDURE CODE, 1908 - ORDER VI RULE 17 - Rejection of amendment application - Factors to be considered - Amendment sought is imperative for proper and effective adjudication of the case - Amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money - Refusing amendment would in fact lead to injustice or lead to multiple litigation - Proposed amendment does not constitutionally or fundamentally change the nature and character of the case - Amendment application is bona fide, legitimate, honest and necessary - Amendment application allowed.
Fact of the Case:
Plaintiffs filed a suit for declaration of their right, title, and interest in the suit property and for injunction restraining the defendants from disturbing their possession. The defendants claimed bargadarship rights in the suit property. The plaintiffs filed an application for amendment of the plaint to incorporate facts relating to the acquisition of title by their vendor. The trial court rejected the amendment application on the ground that it was filed at a belated stage.
Finding of the Court:
The court held that the proposed amendment was necessary to adjudicate the real controversy between the parties and that the belated filing of the application did not stand in the way of allowing the amendment. The court set aside the order of the trial court and remanded the case back to the trial court for fresh consideration of the amendment application.
Issues: 1. Whether the proposed amendment is necessary to adjudicate the real controversy between the parties? 2. Whether the belated filing of the amendment application stands in the way of allowing the amendment?
Ratio Decidendi: The court relied on the following principles in reaching its decision: 1. The power to grant amendment to pleadings is intended to serve the needs of justice and is not governed by any narrow or technical limitation. 2. The dominant purpose behind consideration of an amendment application is to minimize litigation. 3. The court should consider whether the amendment application is malafide, worthless, dishonest, and designed to delay legal proceedings, and if so, it should be discouraged. However, if the amendment sought is bona fide, legitimate, honest, and necessary, the court is required to decide the same accordingly.
Final Decision: The court allowed the amendment application and remanded the case back to the trial court for fresh consideration of the amendment application.
JUDGMENT
1. Being aggrieved and dissatisfied with the order no. 126 dated 28.09.2021 passed by the learned Civil Judge (Junior Division), 3rd Court, Tamluk, Purba Medinipur in Title Suit No. 117 of 2010 present application under Article 227 of the Constitution of India has been preferred. By the impugned order learned Court below has been pleased to reject plaintiff’s prayer for amendment of plaint.
2. Petitioner contended that the aforesaid Title Suit against opposite parties was filed with prayer for declaration of title in the (ka) schedule property and also for a declaration that the plaintiffs have inherited the said property and the opposite parties have no right title or interest in the said property under any capacity and also for permanent injunction. Petitioner states that the Schedule property originally belonged to one Amiya Ranjan Maity son of Sashibhusan Maity and Amiya Ranjan Maity was in khas possession in the said land by making cultivation and his name was duly recorded in the record of rights. Subsequently said schedule property was sold to the predecessor of the plaintiffs, Madhusudan Kanp by a deed of sale dated 01.08.1956. Madhusudan after purchase digged a pond on a portion of the said Schedule land and some portion converted into Bastu where he had built a house and was in possession. The plaintiffs in their turn were resided in the said house to look after the said property. The name of Madhusudan kanp was recorded in the L.R. Record of Rights but due to mistake the area of land has not been shown correctly. Madusudan Kanp sold 78 decimal of land from “Kha” schedule and rest 2.42 decimal of land was in his possession. Plaintiff’s further case is Madhusudan Kanp died sometime in the year 2000 and as such the plaintiffs inherited the said property as his legal heirs and representative. Petitioner further submits that the opposite parties No.1(ka) to 1 (cha) are claiming themselves as Bargadar in respect of a portion of “Ka” schedule suit property but the plaintiff are not served with any notice in respect of recording of their names as Bargadar and further contended that recording their names as “Bargadar” is erroneous and baseless.
3. The evidence of both the parties have concluded and after closing of evidence the petitioners filed aforesaid application for amendment of plaint on 24.07.2019. By the said application for amendment the plaintiffs want to incorporate as to how and in what manner their vendor Amiya Maity got the suit property and if the said facts be not incorporated in the plaint that will cause serious prejudice to the plaintiff. In support of their delayed filing of application for amendment, plaintiffs contended that at later stage they came to know about the fact relating to way of acquisition of title by Amiya Maity in connection with the suit property, from whom plaintiffs father purchased the suit property.
4. Learned counsel appearing on behalf of the petitioner further submits, if the proposed amendment is allowed it will not change nature or character of the suit nor it will create any new or inconsistent pleading. But the trial court rejected the said application on the ground that it has been filed at a belated stage. According to the petitioner the court below was wrong in not considering the facts for determination in the suit and that documents relating to proposed amendment are very old which is dated 02.09.1930. In spite of due diligence plaintiff/petitioner could not have raised the matter before the commencement of trial. He further submits that proposed amendment is very much necessary in order to determine the real question in controversy between the parties.
5. Learned Counsel appearing on behalf of the opposite party raised objection and referred proviso to order VI rule 17 of the Civil Procedure code and contended that the evidence of both the parties have already been closed and as such the trial court was justified in rejecting the prayer for amendment as plaintiff mis
