IMPORTANT POINT
The court emphasized the importance of due diligence and bona fide, legitimate, and necessary amendments, while rejecting mala fide, worthless, and dishonest amendments.

JUDGMENT :

Shampa Sarkar, J.

1. The order dated December 6, 2023 passed by the learned Civil Judge, (Junior Division), 3rd Court, at Howrah, in Title Suit No.13 of 2007, is the subject-matter of challenge, in this revisional application.

2. By the order impugned, the learned court rejected an application for amendment of the written statement filed by the defendants. According to the learned court, the amendment was not relevant to the suit as the factual aspects were completely different. The amendment was belated, as trial had commenced. PW1 had been partly cross-examined.

3. By the proposed amendment, the defendants wanted to bring on record that Title Suit No.08 of 2001, which had been decreed in favour of the plaintiff and the deed of sale which was executed on the basis of the decree, were vitiated by fraud. The plaintiff had claimed title over the suit property, on the basis of such fraudulent decree and title. The defendants wanted to incorporate pleadings that the decree which was obtained by fraud and the title deed of the plaintiff were void ab initio. In the schedule of amendment, it was further averred that although the defendants were impleaded in the said suit as defendant nos.3 and 4, they did not appear in the suit as summons were not served. They also contended that the alleged Vakalatnama and the petition for adjournment seeking time to file the written statement, were fabricated and illegally procured by the plaintiff.

4. Mr. Pinaki Ranjan Mitra, learned Advocate for the petitioners/defendants submitted that amendment of a written statement should be allowed liberally. Mr. Mitra, next contended that in the written statement the defendant denied the plaintiff’s title. The manner in which title had been derived, as pleaded in the plaint, was also denied. Although, specific averments with regard to the said Title Suit and the decree passed were not made in the written statement, there was a denial that the plaintiff did not acquire any title in the manner in which the plaintiff had described in the plaint.

5. In the counter-claim filed by the defendants, in Paragraph 17D, an averment had been made that any decree in favour of the plaintiff for specific performance of contract, was not binding upon the defendants.

6. According to Mr. Mitra, by the proposed amendment the defendants did not seek to incorporate any new fact which would change the nature and character of the suit or the nature and character of the defence. Only an elaboration and further explanation with regard to the plea already taken in the counter-claim that the decree was not binding, being a result of conspiracy, was sought to be incorporated. Unless the pleading that the decree was obtained by fraud, misrepresentation and collusion, were specifically incorporated, the defendants would not be able to establish why the decree was not binding upon them.

7. Reliance was placed on the decision of the Calcutta High court in Mahesh Chandra Bayan vs. Manindra Nath Das and Ors., reported in AIR 1941 Cal 401. Paragraph 14 of the said judgment was relied upon in support the contention that a judgment so long as it stood was conclusive, but if it was obtained by fraud, the bar created under Section 11 of the Code of Civil Procedure would be automatically removed. Section 44 of the Evidence Act, also did not stand in the way. The said provision was permissive and not prohibitive. It allowed a party to avoid a judgment by proving fraud or collusion.

8. Thus, according to Mr. Mitra, the fact that the decree for specific performance was obtained by the plaintiff by practicing fraud and collusion, was required to be pleaded in the instance case. The issue to be decided in the suit, was the title of the parties. The plaintiff filed the suit for ejectment against the defendants, claiming ownership through the decree passed in Title Suit No.8 of 2001. On the other hand, the defendants claimed title through purchase of the same. Thus, the question of title in this case w