IMPORTANT POINT
Amendment of Written Statement – Inordinate delay in filing application for amendment of written statement cannot be allowed.

JUDGMENT

Chaitali Chatterjee Das, J.—This is an application filed under Article 227 of the Constitution of India against an order dated 18th January, 2024 passed by the Learned Civil Judge Junior Division at Sealdah in Title Suit no. 33 of 2002 where the Learned Court has allowed the application for amendment filed by the defendant Opposite Party herein.

2. The fact of the case of the petitioner in a nutshell is that the plaintiff Prashant Kumar Das filed a suit against the present petitioner for the recovery of the suit property praying for damage of mean profits of Rs.4000 per month from the date of filing of the suit and denial of title of the owner/licensor on 13.9.2000 till the filing of the plaint and further mean profits under Order 20 Rule 12 of Code of Civil Procedure. The tentative claim of the plaintiff is Rs.64,000 as damages or profit. It was alleged that the plaintiff became the absolute owner of premises No. 102, Ananda Pali Road, Calcutta, 14 by virtue of a deed of gift executed by his mother late Chhaya Lata Das on 13.8.19 73. During the lifetime of said Chhaya Lata Das and her husband the defendant was a licensee under them and after the deed of gift by the mother, the defendant continued to reside in the suit property as licensee under the plaintiff who later became the owner of the suit property. After demise of said Chhaya Lata Das on 17.2.96, the defendant continued to reside in the same property which consisted of the entire second floor with two bedrooms with kitchen, bath cum privy, Verandah, described by the plaintiff in the schedule of the plaint. It was agreed that the defendant would vacate the suit property by June 20, 2000. Instead of vacating he filed a suit claiming the property as a joint family property .The pleasant plaintiff/petitioners revoked the license and thereafter he filed this suit.

3. The Opposite Party /defendant filed an amendment application for amending the Paragraph 19 of the written statement. The Learned Court after hearing the parties considered that in connection with a partition suit filed by Prashant Kumar Das in respect of the same suit property, a decree was passed whereby it was declared that the plaintiff and the defendant have equal share over the schedule a property and on appeal before the High Court at Calcutta, it was held that the disputed deed of gift is a registered document and it contains a clear and ambiguous declaration of total divestment of property. A registered document carries with its presumption that it was validly executed and the party questioning the genuineness of the transaction is to show that in law, the transaction was not valid. The plaintiff has failed to establish such invalidity and in the factual matrix and the evidence standard by the parties, it is improbable to suggest that the plaintiff being the resident of the schedule property since his birth had no knowledge about the execution of the gifted in the year 1973 till 25.9.2000.

4. Accordingly, it was observed by the learned Trial Court that the right of the parties has been settled in the partition suit as well as by the Hon’ble Court, but for proper adjudication of the dispute, the proposed amendment was allowed being formal in nature and it would not change the nature and character of the suit. Being aggrieved thereby the Plaintiff of that suit has come up before this Court with a prayer to setting aside the said order.

5. The stand taken by the Learned Advocate appearing on behalf of the petitioner that long after 19 years, the amendment application was filed without assigning any reason for such inordinate delay and or that despite due diligence, the defendant failed to incorporate such fact in the written statement hence, therefore hit by the proviso clause of Order 6 Rule 17 of the Code of Civil Procedure and is not maintainable. It is further submitted that by virtue of the decree passed in the partition suit, subsequently affirmed in appeal, the right of the parties has been