Nemai Sadhukhan Alias Nemai Sadhukhan vs Sri Badal Das

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Cal) 1519

IN THE HIGH COURT OF CALCUTTA
BISWAROOP CHOWDHURY, J.
Sri Nemai Sadhukhan Alias Nemai Sadhukhan - Petitioner
Versus
Sri Badal Das & Ors. - Respondents
C.O. No. 2724 of 2022
Decided On : 19-05-2023

Advocates Appeared:
For the Petitioner: Mr. Animesh Paul.
For the Opposite Parties : Mr. Tanmoy Mukherji And Ms. Shinijini Chakraborty.

Headnote:(A) Code of Civil Procedure, 1908 - Order VI Rule 17 - Amendment of plaint - The amendment was sought post the commencement of trial, which the court allowed upon determining that trial had not progressed significantly and the amendment did not change the nature of the suit - The principle that an amendment cannot seek withdrawal of admission was discussed and clarified - The costs to be borne by the plaintiff for the amendment was set at Rs. 1,000. (Paras 6, 9)

(B) Amendments - Scope and effect - An amendment can be permitted even if trial has commenced if it does not change the core nature of the case or seek to extract prior admissions. (Paras 7, 9)

Facts of the case:
The petitioner, a defendant, challenged the order allowing the plaintiffs to amend their plaint by removing mistakenly incorporated dag numbers after trial commenced. The trial court initially denied their request but later allowed it following a higher court's directive.

Findings of Court:
The amendment was permitted since the trial had not significantly progressed; however, costs were imposed on the plaintiffs for the amendment.

Issues: Whether allowing an amendment post-trial commencement was justified and whether it withdrew any admission.

Ratio Decidendi: The court reaffirmed that amendments could be allowed even after trial onset if they are pertinent to real issues and do not alter the character of the case.

Result: Petition dismissed with costs imposed on the plaintiffs.

Table of Content
1. petitioner's background and context of case (Para 1 , 2 , 3)
2. procedural history and application for amendment (Para 4 , 5)
3. legal provisions regarding amendments (Para 6 , 7)
4. court's reasoning on the amendment request (Para 8)
5. final order and modifications (Para 9 , 10 , 11)

JUDGMENT :

Biswaroop Chowdhury, J.

The petitioner before this Court is a defendant in a suit for permanent injunction and is aggrieved by an Order dated 08.07.2022 passed by Learned Civil Judge (Junior Division) 1st Court at Howrah allowing prayer for amendment made under Order VI Rule 17 of the Code of Civil Procedure filed by the plaintiffs.

2. The case of the defendant/petitioner may be summed up thus :

2. Upon entering appearance in the said suit the opposite party no-5 has filed written statement to the said suit and the petitioner has also filed written statement along with counter claim to the said suit. The written statement of the petitioner and counter claim was initially refused by the Learned Trial Court but was subsequently accepted in terms of order passed by this Court in C.O. 2817 of 2019 allowing the written statement to be accepted with cost of Rs. 25,000/-.

3. In the meantime trial of the suit was started and plaintiff witness No.1 was subsequently examined and partly cross-examined.

4. Thereafter opposite party Nos. 1 to 4 filed an application under Order VI Rule 17 read with section 151 of the Code of Civil Procedure 1908, inter-alia praying for amendment of the plaint. In the said application it was contended that at the time of adducing evidence it was detected that at the time of filing of the suit due to haste and inadvertence some dag numbers have been wrongly incorporated in the plaint which are now required to be deleted from the plaint and as such it was prayed that L.R. Dag Nos. 510, 1933 and 1942 be deleted from paragraph 1 and schedule of the plaint.

5. The petitioner and opposite party no-5 have filed their separate written objection to the petition of amendment. In the said objection the contention made in the application for amendment was denied, and it was urged that the cross examination of plaintiffs witness no-1 was complete and the plaintiffs are withdrawing admitted facts.

6. The Learned Trial Court upon hearing the application was pleased to reject the prayer for amendment by Order No. 30 dated 19/08/2019.

7. The opposite party no 1 to 4 being aggrieved by the Order dated 19/08/2019 passed by the Learned Trial Court moved a revisional application before this Court being C.O. 3534 of 2019.

8. By Order dated 17-02-2022 the revisional application being C.O. 3534 of 2019 was disposed. Order no - 30 dated 19-08-2019 passed by the Learned Trial Court was set aside and the Learned Trial Court was requested to reconsider the application for amendment afresh in accordance with law.

9. Pursuant to the Order passed in C.O. 3534 of 2019 by this Court Learned Trial Court reconsidered the application for amendment filed by the opposite party no.1 to 4 and allowed the said application by Order dated 08.07.2022.

10. The petitioner being aggrieved by the Order dated 08-07-2022 passed by the Learned Trial Court has come up with the instant application.

3. It is contended by the petitioner that the Learned Judge acted illegally and with material irregularity in failing to consider the scope and ambit of the provisions contained under Order VI Rule 17 read with proviso of the Code of Civil Procedure. It is further contended that the Learned Court failed to consider that the said application for amendment of the plaint having been filed after the commencement of the evidence is hit by the proviso to Order VI Rule 17 of the Code of Civil Procedure 1908. It is also contended that the application for amend

Click Here to Read the rest of this document