IN THE HIGH COURT AT CALCUTTA Civil Revisional Jurisdiction Appellate Side Present:

The Hon’ble Justice Biswaroop Chowdhury C.O. 3876 of 2019 Hirendranath Mukherjee @ Uttam Mukherjee & Ors.

VERSUS Hiranmoy Mukherjee & Ors.

For the petitioners: Mr. Animesh Paul, Adv.

Mrs. Susmita Ghorai, Adv.

For the opposite party Nos.4 & 5: Mr. Sanjib Seth, Adv.

Last Heard on: March 24, 2025 Judgment on: May 5, 2025 Biswaroop Chowdhury,J:

The petitioner before this Court is a plaintiff in a suit for declaration permanent injunction, and decree of eviction and is aggrieved by the Order dated 12-09-2019 passed by Learned 7th Civil Judge (Junior Division) at Howrah in T.S. 294 of 2015 by refusing the prayer of the petitioner under Order VI Rule 17 of the Code of Civil Procedure.

The case of the petitioners/plaintiffs in the application under Order VI Rule 17 of the Code of Civil Procedure may be summed up thus, 1. The plaintiffs/petitioners filed the instant suit for declaration and permanent injunction and eviction on the grounds stated in the plaint.

2. That after disposal of interim application, the case has been posted for peremptory hearing and at the time of preparation of Affidavit in Chief it was detected for the first time that some very vital facts which were disclosed to the filing advocate were not mentioned.

3. As the filing lawyer was not interested to conduct the suit further and has endorsed his no objection accordingly new lawyer has been appointed.

4. The plaintiff petitioner instructed the newly appointed advocate to prepare the Affidavit in Chief and at the time of preparation of the same it was found that many vital and relevant facts have been omitted which are necessary for determination of the dispute in controversy.

5. It is detected that there are several spelling mistake which are required to be corrected, government officials are required to be added and subsequent event are also required to be brought on record.

6. The aforesaid facts are intrinsically corrected and or instinctually associated with the original averment and for full and final adjudication of the dispute.

7. That there was no want of diligence on the part of the plaintiff/petitioner in filing amendment application.

8. The proposed amendment is formal in nature and the same will not change the nature and character of the suit and the defendant will not be prejudiced if the amendment is allowed;

The defendant’s no-4 and 5 being opposite parties no-4 and 5 herein submitted written objection to the plaintiff’s petition for amendment denying the contentions made therein.

The Learned Trial Court by Order dated 12-09-2019 was pleased to reject the prayer for amendment by observing and directing as follows:

‘Plaintiffs’ case in brief is that schedule A and B suit properties originally belonged to one Nandalal Mukherjee, who died leaving behind Sudhir, Pareshnath, Aghorenath, Dhiraj and Subodh Mukherjee. The present plaintiffs are the descendants of Subodh Mukherjee and defendant no. 1, 2 & 3 are descendants of Dhiraj Mukherjee. The proforma defendants no. 6 to 18 are the others descendants of Sudhirnath and Aghorenath Mukherjee. Pareshnath Mukherjee did without leaving any legal heirs. Admittedly, the plaintiffs jointly and defendant no. 1, 2 & 3 jointly are 1/4th share holder each of the schedule suit properties. There are two contentions of the plaintiffs. One being Bimal Mukherjee, the sole legal heirs of Dhiraj Mukherjee and the predecessor in interest of defendant no. 1, 2 & 3 recorded his name as the sole owner of the schedule A and B suit properties in the record of rights and another being defendant no. 1, 2 & 3 have sold their share to defendant no. 4 & 5 by a registered deed of sale dated 07.07.2014. Against the first contention being erroneous recording in the record of rights, the plaintiffs have already applied before BL & LRO J.B.Pur, and a case being number Misc. Case No. 96 of 2007 has been registered before BL & LRO J.B.Pur, which is pending. Against the seco