Amendments to plaints should be allowed if necessary to determine real issues and do not cause injustice, even if filed after trial commencement.

JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. This application under Article 227 of the Constitution of India has been preferred against order dated 20th February, 2018 passed by the learned Civil Judge (Junior Division), Additional Court, Cooch Behar in connection with Title Suit No. 02 of 2008. By the impugned order learned Court below rejected plaintiffs application under Order VI rule 17 of the Code of Civil Procedure (hereinafter referred as code).

2. Petitioners case in a nutshell is that petitioners as plaintiffs filed aforesaid suit for declaration and injunction against the defendant/opposite party no. 1, 2, 3 herein. During pendency of the suit, petitioners herein filed an application under order VI rule 17 of the Code for incorporation of a prayer in the plaint to the effect that the sale deed dated 12.12.2007 in favour of defendants is false, fictitious and fraudulent deed and the defendants have never acquired any right, title interest in the suit property, by dint of said deed.

3. The opposite parties herein as defendants filed their written objection in connection with the said application, contending that the proposed amendment, if allowed will change the nature and character of the suit and moreover the application for amendment is liable to be rejected, since it has been filed only to fill up the lacuna.

4. Learned court below had taken up said application for amendment of plaint along with its objection filed by the opposite parties/defendants and after contested hearing, learned Court below rejected the said application filed by the plaintiffs/petitioners with an observation that plaintiffs offered no explanation why the application for amendment was not filed before commencement of trial and the plaintiff also failed to show that after exercise of due diligence, they could not prefer amendment before the commencement of the trial. The court below further held that there is no question that the suit is barred by the law of limitation or under the provision of section 34 of the Specific Relief Act. Court below further held that the suit is in preemptory stage and in the midst of argument, and as such the suit cannot be heard on preliminary issue, as claimed.

5. While passing the order impugned, the court below pointed out that evidence of both sides have already been completed and as such it will not be proper to decide the suit on preliminary issue. Order impugned clearly reflects that the court below is very much apprehensive that the prayer for amendment if allowed, he will have to hear the suit on preliminary issue under order XIV of the code.

6. Before going to further details let me state the schedule of proposed amendment which runs as follows:-

“that in paragraph 8 after the clause “a”, a new para to be added as “aa” as follows:-

“(aa) for a decree of declaration that the alleged sale Deed being No. j-3812 dated 12/12/2007 of the Office of the District Registrar, Cooch behar in the name of the defendants is out and out a false, fictitious and fraudulent Deed and through the said Deed defendants never acquired any right title, interest or possession over that said property nor Sahimuudin Miah executed such Deed at all.”

7. The principles governing the question of allowing or rejecting prayer for amendment under VI rule 17 has been reiterated in several salutary judgments which states that all amendments ought to be allowed which satisfy the two conditions (i) of not working injustice to the other side and (ii) of being necessary for the purpose of determining the real questions in controversy between the parties. Needles to mention that the real controversy test is the basic or cardinal test and it is the primary duty of the court to decide whether such an amendment is necessary to decide the real dispute between the parties and at this stage court is not supposed to go into the correctness or falsity about the subject matter of amendment.

8. From the averments made in the plaint, it is quite clear that the bone of co