Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Cal) 341

IN THE HIGH COURT AT CALCUTTA
BISWAROOP CHOWDHURY, J.
Rina Mukherjee & Anr. – Appellants
Versus
Sanat Chandra Datta & Anr. – Respondents
C.O. 2616 of 2022
Decided on : 03-03-2024

Advocates:
Advocate Appeared:
For the Appellant : Mr. Animesh Paul, Adv. Ms. H. Rajdev, Adv.

IMPORTANT POINT
The duty of the advocate to obtain relevant instructions and the need to avoid penalizing litigants for unintentional omissions.

Headnote:
Amendment - Landlord's Suit for Eviction - West Bengal Premises Tenancy Act 1997 - Section 6(1)(d)
Fact of the Case:
The plaintiffs, landlords in a suit for eviction, sought to amend the plaint to incorporate relevant facts that were unintentionally omitted. The defendants objected to the amendment, alleging mala fide intent and contending that it would change the nature of the suit.
Finding of the Court:
The court allowed the amendment, emphasizing the necessity to determine the real dispute between the parties and the duty of the advocate to obtain relevant instructions. The court also ordered the payment of costs by the petitioners.
Issues: The main issue was whether the proposed amendment was necessary to decide the real dispute between the parties and whether the plaintiffs' unintentional omissions should be condoned.
Ratio Decidendi: The court held that the amendment should be allowed as it was necessary to determine the real dispute between the parties. It emphasized the duty of the advocate to obtain relevant instructions and the need to avoid penalizing litigants for unintentional omissions.
Final Decision: The court allowed the amendment, set aside the previous order, and ordered the payment of costs by the petitioners.

JUDGMENT :

Biswaroop Chowdhury, J.

1. The petitioners before this Court are the plaintiffs/Landlords in a suit for eviction and appellants in the appeal being Title Appeal No. 84 of 2013 and respondents in Title Appeal No. 85 of 2013 pending before Learned Civil Judge (Senior Division) 2nd Court Howrah both being heard analogously arising out of decree passed in T.S. No – 219/2004 passed by Learned 1st Court of Civil Judge (Junior Division) at Howrah. The petitioners being aggrieved by the Order dated 27-07-2022 passed by the Learned Appellate Court in rejecting the application under Order VI Rule 17 CPC have come up before this Court with the instant application.

2. The case of the petitioners before the Learned Appellate Court may be summed up thus:

1. The appellants as plaintiffs herein have filed, a suit for eviction and recovery of Khas possession against the defendants/respondents which was numbered as Title suit No – 219 of 2004 before the Learned First Civil Judge, ( Junior Division) at Howrah. Upon contested hearing the Learned Trial Court vide its order dated 29th April 2013 was pleased to pass decree of partial eviction. Being aggrieved and dissatisfied with the said decree, the plaintiffs as appellants have preferred the title appeal whereas the respondents as appellants have also preferred separate Title Appeal being Title Appeal 84 of 2013 and Title Appeal 85 of 2013, and both the Title Appeals are analogously heard by the Appellate Court.

2. The appeals are at the argument stage. In the meantime the Learned Advocate of the appellants/plaintiffs have detected that due to unintentional latches, negligence in advertence and/or lack of knowledge some relevant facts which are specifically mentioned in the schedule written herein below are unreported in the plaint.

3. That admittedly there is serious mistake on the part of the petitioners and their engaged Advocate but it is completely un-intentional latches and negligence on their part. The proposed amendment as mentioned in the schedule of the application is very much required to be incorporated in the plaint to substantiate the case of the plaintiff.

4. That the proposed amendment would not change the nature and character of the instant suit. Just for proper adjudication of the instant suit and to decide the issues as involved with the instant matter, proposed amendment is necessary.

5. That there is no embargo to allow this application and if the proposed amendment is allowed the defendants/respondents would get ample opportunity to controvert the proposed amendment portion, otherwise, your petitioner would suffer irreparable loss and injury.

3. The plaintiffs have sought to incorporate the proposed amendment in paragraph No. 3 of the plaint by a new sentence inserted in the following manner:-

“Though the Said Deed of gift contains other properties, but apart from the suit holding, all other properties were sold long prior to institution of the instant suit, in favour of third party. Save and except the suit holding, the plaintiffs have no other alternative suitable accommodation elsewhere, in any manner whatsoever. The plaintiff no. 1, Smt. Rina Mukherjee’s paternal property i.e. 15, Shibtala Lane is situated far away from the suit property, since her marriage, she never been stayed and/or allowed to stay at her said parental property and she has no interest to claim any ownership right and possession at the said property by any means. In Para no. 6 of the said plaint, a new Para be added as in the manner i.e. the plaintiffs never received any monthly rent and/or fair rent from the defendants after death of the original tenant Narayan Chandra Dube and no fresh agreement of tenancy, ever been executed between them, in respect of the said tenancy. With effect from 9th July 2006 and onwards, under the provisions to section 2(g) of West Bengal Premises tenancy Act 1997, defendants became trespassers.”

4. The opposite parties/respondents filed written objection to the petition