JUDGMENT :

1. This is an application under Article 227 of the Constitution of India challenging the order dated 05.03.2019, passed by the Learned Civil Judge (Junior Division), 1st Court, Howrah, in Title Suit No. 66 of 2010. By the impugned order, court below has rejected plaintiffs’/petitioners’ application for amendment of plaint, as well as other application for addition of parties made by the plaintiffs/petitioners.

2. The petitioners contended that the plaintiffs filed the aforesaid suit against the defendants/opposite parties for declaration and injunction and the opposite parties no. 4 to 8 entered appearance in the suit and filed written statement denying all material allegations. The petitioner in the plaint stated that plaintiffs are the lawful owners of the property with the structure standing thereon described in plaint under the Bally Municipality. The suit property was taken by way of settlement from the erstwhile landlords Hemanta Ghosh and Lalit Mohan Ghosh by way of registered Kabuliyat dated 23.04.1940, which was bilaterally executed by the petitioners predecessor Indu Bala Dassi and the said erstwhile landlords. After the death of Indu Bala Dassi, his only son Sourendra Nath Ghosh and upon his death his wife and his son and daughters owned and seized the suit property. Plaintiffs/petitioners alleged, Recently there has been some illegal and/or mala fide attempt at the instance of the employee of the defendant, on 12.04.2016, resorted to exercise all sorts of illegal and forcible endeavor to make out and/or crave out as alleged passage through or across the said residential house property of the plaintiff with the aid of defendant nos. 4 to 9. Further allegation is that the defendant no. 1 had totally blocked the eastern mouth of an adjacent land by erecting a pucca wall to create camouflaged evidence as to alleged non-existence of any passage for the purpose of doing egress and ingress from the respective house of defendant nos. 4 to 9, knowing exclusive ownership of the plaintiffs in respect of concerned property. It is also alleged that the defendant no. 4 forcibly and illegally has taken electricity connection under ground of the plaintiff’s southern portion of the property with the connivance of CESC Limited. The defendant no. 4 filed a writ petition before this Court being WP No. 19293 (W) of 2009 against the plaintiffs and Bally Municipality for water connection in his premises through the alleged common passage, but after hearing the writ petition High Court was pleased to pass an order for water connection subject to the result of the civil suit pending between the parties. Petitioners accordingly submitted that the said acts of the defendant in collaboration made with each other with the CESC Limited and Bally Municipality required to be uprooted and removed from the underground portion of the property, since the said illegal act has been done by the defendant to form out an illegal passage through and/or from the residential house of the plaintiff.

3. During the pendency of the suit, the plaintiff filed an amendment petition for amendment of plaint on account of supplying material facts in detail and to incorporate certain subsequent event and to describe schedule of plaint property and another application for addition of Howrah Municipal Corporation and CESC as party in the suit. The learned court below took up the applications for hearing and after hearing was pleased to reject both the applications by passing the impugned order dated 05.03.2019.

4. Mr. Bhattacharyya, learned Counsel appearing for the petitioner submits that the order impugned not being a speaking order has resulted a gross failure of justice. The Court below misread and misunderstood the case made out by the respective parties in the application for amendment and objection filed against said application. He ought to have allowed both the applications. The proposed amendment is formal in nature and if allowed will not change the nat