An amendment of pleadings under Order VI Rule 17 CPC may be allowed after the commencement of trial if it is clarificatory, does not change the nature of the suit, and the trial court has not specifically found a lack of due diligence.

Form No.J(2)

Raja Basu Chowdhury, J (Oral):

1. Questioning order no. 52 dated 30th November 2022 passed by the Learned Civil Judge (Senior Division), Chanchal, Malda whereby the petitioner’s application under Order VI Rule 17 of the Code of Civil Procedure 1908 (Code) had been rejected, the instant writ petition has been filed.

2. Though, the matter had come up under the heading “for extension of interim order”, however, considering the issues involved and noting that the suit has remained stayed since 5th January 2025, this Court by consent of the parties has taken up the hearing of the revisional application itself.

3. The plaintiff / petitioner has filed a suit for partition and declaration in respect of two suit plots being Dag no. 517 and 518 within P.S. Kharba at present Chanchal. According to the plaintiff /petitioner the plot no. 517 comprises of 22 decimals of land as per the RS settlement record. The plaint case, however, proceeds on the premise that the plaintiff’s father Raghunath Das had 10 annas out of 16 annas interest while the father of the defendant, Bholanath Das had 4 annas interest and that one, Bidyadhar Das, their brother had 2 annas interest in the said suit property which was later transferred in favour of Bholanath Das by Bidyadhar Das. The plaint case further proceeds on the premise that the aforesaid property stands recorded in the RS settlement records. It would also transpire from paragraph 3 of the plaint that insofar as the plot no. 517 is concerned, Bholanath Das apart from having 4 annas interest had acquired 2 annas, thereby his title interest in the property was enlarged to about 6 annas.

4. Although, the plaintiff had instituted title suits in respect of the aforesaid property, since the property had not been partitioned by metes and bounds and since the oral prayer for partition was turned down, the plaintiff was constrained to institute the above partition suit. The defendant has been contesting the suit by filing written statement and has denied the statements made by the plaintiff. Subsequently, an amendment application was introduced by the plaintiff to highlight certain facts which the plaintiff felt, were necessary to morefully elucidate upon the real controversy in issue.

5. The said application was contested by the defendant, inter alia, by contending that the subject matter of the suit forms subject matter of a previously instituted suit between the same parties and as such, such fact had been suppressed and accordingly, the amendment should not be allowed. This apart, it was also contended that the plaintiff was attempting to introduce the amendment to fill up the lacuna.

6. Admittedly, at that stage the trial of the suit had commenced. The plaintiff had already tendered its affidavit evidence, though, cross examination had not started.

7. The Learned Judge, however, by a cryptic order rejected the amendment application, inter alia, on the ground that the trial had commenced at the time when the amendment has been introduced.

8. Mr. Bandopadhyay, learned advocate appearing for the defendant / opposite parties has raised serious objection in allowing the revisional application. According to him, the subject matter of the amendment application stands covered by separate suits. The same is also barred by the provisions of order II Rule 2 of the Code. In support of his contention that belated amendment should not be allowed, he has placed reliance on a judgment of t