JUDGMENT :

Shampa Sarkar, J.

Affidavit of service filed by the petitioner is taken on record.

2. Despite service, none appears on behalf of the opposite party.

3. This revisional application is directed against an order dated January 25, 2023, passed in Title Suit No.40 of 2021, by the learned Civil Judge (Junior Division), 2nd Court, Chandannagar, Hooghly. By the order impugned, the application under Order 6, Rule 17 of the Code of Civil Procedure filed by the defendant was allowed.

4. The defendant wanted to incorporate a fact, which could not be incorporated in the written statement, due to bona fide mistake. The fact sought to be incorporated was that the plaintiff/petitioner had taken an amount of Rs.25,000/- from the defendant and the plaintiff agreed not evict the defendant. The defendant was allowed to possess the suit property till he ran business therefrom. The defendant was around 72 years old.

5. The petitioner has challenged the order on the ground that the said amendment could not have been allowed at the stage of evidence. By allowing the amendment, the learned court below has acted contrary to the proviso to Order 6, Rule 17 of the Code of Civil Procedure. The facts which was sought to be incorporated was known to the defendant at the time of filing of the written statement, but were not pleaded. The amendment was an attempt to frustrate the eviction suit.

6. The court below came to the conclusion that the amendment, if allowed, would not change the nature and character of the suit.

7. Although, this court finds that the learned trial court did not adduce proper reasons for allowing the amendment, the amendment sought to be filed was merely an elaboration of the statements already made in the written statement and did not in any way introduce contrary pleas. The amendment did not amount to taking away of any admission made in the written statement, nor did it amount to destruction of any right which may have accused in favour of the plaintiff after the defendant's case was disclosed.

8. Under such circumstances, although the suit has progressed, this court is of the view that for the ends of justice, the facts sought to be incorporated by way of amendment, should be allowed. The defendant shall be allowed to file amended written statement, if not already filed and the petitioner shall file a rejoinder to the same, within three weeks from the receipt of the copy of amended written statement. Correctness or merits of the pleading which were to be incorporated cannot be decided at the stage of hearing the amendment application and they have to be proved at the trial.

9. In the decision of Rajesh Kumar Aggarwal and others v. K.K.Modi and others reported in AIR 2006 SC 1647 , the Apex Court held on similar lines and directed that the Court was not to go into the merits. The relevant portion is quoted below:-

"While considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. Likewise, it should not record a finding on the merits of the amendment and the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment."

10. In the matter of Life Insurance Corporation of India v. Sanjeev Builders Private Ltd. & anr. decided in Civil Appeal No.5909 of 2022, the Hon'ble Apex Court held as follows:-

"22. It would be useful to also notice the observations of this Court in, Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, 1957 SCR 595 : AIR 1957 SC 363, wherein this Court considered an objection to the amendment on the ground that the same amounted to a new case and a new cause of action. In this case, this Court laid down the principles which would govern the exercise of discretion as to whether the court ought to permit an amendment of the pleadings or not. This Court approved the observations of Batchelor, J., in the case of Kisandas Rupchand