JPD-9 Ct No.01

23.07.2025 (sss)

Calcutta High Court In The Circuit Bench at Jalpaiguri Appellate Side CO 68 of 2025 Sri Uttam Kumar Biswas Vs.

Sri Monohar Goali and Ors.

Mr. Bapi Sarkar, Mr. Roumyadip Saha ….For the Petitioner.

Mr. Rajat Das, Mrs. Anumita Lahiri …For the Opposite Party nos. 1 to 5.

1. Heard learned counsel for the parties.

2. By the impugned order, an application for amendment of the plaint in the suit filed by the plaintiff/revisionist petitioner was rejected.

3. The rejection was primarily on two grounds – first, that no plausible explanation for the delay of about ten years in filing the amendment application was furnished; secondly, that the relief sought to be introduced by way of the amendment was time-barred.

4. As per the pleadings sought to be incorporated by virtue of the amendment application, on August 7, 2015, that is, almost ten years prior to the making of the amendment application, the defendant nos. 1 to 5 had allegedly come to the suit land and made one tin shed structure by four cemented pillars and two bamboo poles as well as fixed a signboard displaying the name of Bhaktinagar Netaji Youth Club on the pillar. As per the said proposed amended pleadings, the defendants had also kept two ‘Rath’s (thela gari) on the suit land on the said date.

5. The learned Trial Judge held that when the amendment application was filed, the evidence of the parties had already been concluded and arguments were about to commence in the suit. No plausible explanation for the delay of about ten years in filing the amendment application, by waiting till after the completion of the evidence, was furnished by the defendant/petitioner.

6. That apart, it was held that the relief now sought to be incorporated, being a decree directing the defendants to demolish and remove all illegal structures and the ‘Rath’ from the suit land is by now time-barred. 7. Learned counsel appearing for the petitioner submits that the relief sought to be introduced by the amendment is in the nature of one for recovery of possession and is accordingly not time-barred, being within twelve years. Moreover, it is submitted that the learned Trial Judge also took into consideration in the impugned order the previous dismissal of an application filed under Order XXXIX Rule 2A by the petitioner, which was on a different allegation than the one sought to be incorporated by virtue of the amendment. Since the said miscellaneous case under Order XXXIX Rule 2A of the Code of Civil Procedure was on a different instance of violation of the ad interim order of status quo granted by the learned Trial Judge, the said consideration was irrelevant for deciding the amendment application.

8. Learned counsel for the petitioner further submits that in any event, the reliefs can be moulded by the court and in view of the now admitted dispossession of the plaintiffs, the relief of recovery of possession should have been permitted to be incorporated in the plaint.

9. Learned counsel appearing for the contesting defendants/opposite party nos. 1 to 5 places reliance on Article 113 of the Schedule to the Limitation Act and submits that in view of the relief not being couched as one for recovery of possession but being a decree of demolition and removal of structures on the suit property, the same is governed by Article 113 of the Limitation Act and is, as such, time-barred.

10. Moreover, since the evidence of the parties is already concluded, the learned Trial Judge was justified in refusing to permit the amendment.

11. Thirdly, learned counsel for the opposite party nos. 1 to 5 contends that in the year 2018, that is, three years after the alleged cause of action for the amendment, the plaintiffs’ witness asserted during deposition that the plaintiffs were till then in occupation of the suit property, thereby belying the amendment now sought to be incorporated, indicating that the construction of the structures took place in the year

2015.

12. Upon a careful consideration of the ma