The Court emphasized that amendments for partition should not alter the nature of the original suit, and that establishing title is essential before claiming partition as an independent relief.

JUDGMENT :

CHAITALI CHATTERJEE DAS, J.

1. This revisional application is directed against an order dated February 12, 24 passed by learned Civil Judge (Jr.) Division 3rd Court at Baruipur, 24 Parganas South in Title suit No. 3 of 2007. The present petitioners being the plaintiff filed a suit for declaration and permanent injunction against the opposite parties before the learned trial court. The Opposite Party No. 1, entered appearance and filed written statement denying the material allegations containing in the plaint. The petitioner thereafter filed an application under Order VI Rule 17 of the Code of Civil Procedure praying for an amendment of the aforesaid suit. Written objection was filed by the Opposite Party No1. The Learned Trial Court after hearing both the parties reject the application for amendment on the ground that if the amendment is allowed, it will invite future amendment and will change the nature and character of the suit.

2. It is argued before this court that amendment can be made at any stage of the proceeding provided in case where trial has commenced the petitioner will have to assign sufficient reasons and in this case the trial has not commenced. Furthermore the nature and character of the suit will not be changed as the suit was filed for declaration and the proposed amendment is to incorporate the prayer for partition in the alternative and should treat as a consequential relief to the original relief. It is further argued that in order to obtain a relief under Section 34, plaintiff must establish that the plaintiff is at the time of suit entitled to any legal character or to any right as to any property and legal character and right to property are used disjunctive so that either of them exclusively made, maybe the basis of a suit.

3. It is further argued that the proposed amendment was only for the purpose of proper adjudication of the dispute pending before the trial Court neither the proposed amendments will change the nature and character of the suit. It is further assailed that the Hon’ble Supreme Court in a catena of decisions has observed that the court must take lenient approach while dealing with applications for amendment. The Learned advocate has relied upon the decisions reported in AIR 1963 CAL 46 and the judgement of the Division Bench of the High Court at Calcutta in F.A.T 203 OF 2024 Avik Ghosh and ors vs Sukumar Ghosh and ors.

4. The advocate of the Opposite Party, on the other hand raised vehement objection, and argued that the suit was filed for declaration and permanent injunction, but by virtue of this proposed amendment, the petitioners are intending to change the basic nature and character of the suit .The plaintiff/petitioner failed to satisfy the learned trial court as to why in the plaint the fact of ‘partition on family settlement on May 17, 2022 was approached which was refused by this opposite party “has not been incorporated in the plaint when it was very much known to the plaintiff. It is further argued that the decisions cited by the Opposite Party must be tested through the lenses of facts and circumstance of the instant case and in this regard, relied upon a decision reported in, [(2006) 1 SSC 368] in Union of India and Anr. vs Major Bahadur Singh .

5. Heard the submissions of both the learned advocates. The Title suit no. 3 of 2007 was filed by the predecessor of the present petitioner No. 25 (ka).(kha),(ga)(cha), plaintiff