IMPORTANT POINT
It cannot be pre-judged that mere amendment of pleadings could possibly put other side into trouble and there will be a failure of justice, which cannot be compensated by money.

Siddhartha Chattopadhyay, J.—Having lost the legal battle in connection with an application under Order 6 Rule 17 filed before the Learned Second Bench, City Civil Court at Calcutta in connection with T.S. No. 316 of 2011, the present petitioner has come before this forum with a prayer to set aside the impugned order dated 24.2.2013 passed by the Learned Court concerned.

2. According to the petitioner, the Learned Court below has totally committed a wrong by not the applying its mind that the amendment so sought for caused serious prejudice to the present petitioner and thereby deprived him of a right that has been accrued to him. He has also contended that there is a failure of justice by the said impugned order. Opposite party contested this case, and submitted that the impugned order does not warrant any interference.

3. At the time of hearing Learned Counsel appearing on behalf of the petitioner has argued that new facts have been intended to incorporate only to frustrate the present petitioners’ claims. He has further stated that in the main suit he has filed counter-claim and if this amendment is allowed in that case his right will be jeopardized heavily. He has categorically mentioned that new facts which the opposite party wanted to say in his application under Order 6 Rule 17 of CPC is actually not a new facts but it was a pre-existing fact and in spite of that only to harass him such plea has been taken.

He prayed for dismissal of the impugned order. In support of his submission he has referred to following judgments:

(i) Civil Appeal No. 6921/2009, M/s. Reevajeetu Builders v. M/s. Narayanawami & Sons & Ors).

(ii) Mashyak Grihnirman Sahakari Sanstha Maryadit v. Usman Habib Dhuka., Supreme Court Cases-2013-9-485.

(iii) S.J.Ebenezer v. Velayudhan, AIR (Supreme Court 1998 page 746. and Union of India v. Pramod Gupta (dead) by LRS., (2005) 12 Supreme Court Cases 1.

4. I have gone through the aforesaid judgments of the Hon’ble Apex Court very meticulously. Ratio of all these judgments, in my view, is such that amendment will be ordinarily refused when the effect of the amendment would be to take away from a party a legal right, which had accrued to him by lapse of time. Only this rule can apply when either fresh allegations are added or fresh reliefs are sought for by way of amendment, where for instance, an amendment is sought which merely clarifies an existing pleadings and does not in substance add to alter it. The other important condition which should govern the discretion of the Court, is the potentiality of prejudice which may cause injustice to the other side.

5. Therefore, I should now delve into the issue whether any legal right was accrued to the present petitioner, which has been jeopardized for allowing such amendment application. It appears from the record that the present petitioner has made a counter-claim in the original Title Suit Bearing No. 316 of 2011 and the present opposite party has filed written statement in that suit. In the original suit the present opposite party had given an indication that after of obtaining sanction plan from KMC he had started structure and also purchased building materials. When the present petitioner raised objection and caused disturbance for construction of building of the present opposite party, the plaintiff/the opposite party filed an application under Section 144(2) of the Code of Criminal Procedure so that his construction work was not disturbed. Accordingly, the present opposite party has prayed for a declaration of right, title, interest in the suit property and for a permanent injunction restraining the present petitioner Nos. 1 and 2 from disturbing the reconstruction work at the suit premises No. 9C Jagadish Nath Roy Lane.

6. In the amendment application he has submitted that the premises No. 7B, Jagadish Nath Roy Lane, Kolkata-700 006, is a “new” two storied building newly built on a portion of land of previous premises No. 7, Jagadish Nath Roy Lane, Kolka