IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Before:

The Hon’ble Justice Hiranmay Bhattacharyya C.O. 3100 of 2024 Manasa Pallab & Ors.

VS.

Jagabandhu Aru & Ors.

For the Petitioner : Mr. Kushal Chatterjee Mr. Oishik Chatterjee ….advocates For the Opposite Party : Mr. Debjit Mukherjee Mr. Kaustav Bhattacharya Ms. Priyanka Jana …. advocates Reserved on : 29.04.2025 Judgment on : 15.05.2025 Hiranmay Bhattacharyya, J.:-

1. This application under Article 227 of the Constitution of India is at the instance of the defendant nos. 1 to 6 and is directed against an order being No. 41 dated July 11, 2024 passed by the learned Civil Judge (Junior Division), 1^st Court, Howrah in Title Suit No. 114 of 2022.

2. By the order impugned, the application for amendment of plaint stood allowed.

3. Opposite party no. 1 herein filed a suit being T.S. No. 114 of 2022 praying for declaration of title in respect of “A” schedule property and for a further declaration that the petitioner and the proforma opposite parties herein, who are the defendants in the suit, do not have any right to block the common passage as described in Schedule “B” and for permanent injunction. The petitioners and the proforma Opposite parties herein are contesting the said suit by filing a Written Statement denying the material allegations contained in the plaint. The opposite party no. 1 herein filed an application for amendment of plaint and the petitioners contested such application by filing a Written Objection.

4. The learned trial judge allowed the application for amendment of plaint and some of the defendants have approached this Court challenging such order.

5. Mr. Chatterjee, learned advocate for the petitioner contended that the application for amendment of plaint was filed at the stage of cross examination of the defendant witness no. 1 and the plaintiff has not given satisfactory explanation as to why the application for amendment could not have been filed before the commencement of trial. He further contended that the facts which were incorporated by way of amendment were all within the knowledge of the opposite party no. 1 prior to the commencement of trial and, therefore, the proviso to Order VI Rule 17 of the Code of Civil Procedure (for short “the Code”) stood attracted in the case on hand. Mr. Chatterjee submitted that the subject matter of dispute in the suit is with regard to the “B” schedule common passage and the proposed amendment is beyond the scope of the instant suit. He contended that an amendment seeking to set up a new case or a new cause of action should not be allowed if the suit on new case or cause of action is barred. In support of such contention, he placed reliance upon the decision of the Hon’ble Supreme Court in B. K. Narayana Pillai vs. Parameswaran Pillai and another reported at (2000) 1 SCC 712. Mr. Chatterjee submitted that the doctrine of constructive notice shall apply against the plaintiff and in support of such contention he placed reliance upon the decision in the case of Md. Noorul Hoda vs. Bili Raifunnisa and other reported at (1996) 7 SCC 767. He contended that the facts leading to the challenge thrown to the registered instruments were within the knowledge of the plaintiff and a suit to set aside such registered deed of gift would be barred by limitation as on the date of filing the application for amendment. He contended that without recording any finding as contemplated under proviso to Order VI Rule 17 of the Code, the learned trial judge ought not to have allowed the amendment. In support of such contention, he placed reliance upon the decision of the Hon’ble Supreme Court in Pandit Malhari Mahale v. Monika Pandit Mahale reported at (2020) 11 SCC 549. Mr. Chatterjee contended that by way of amendment the plaintiff sought to introduce a totally different, new and inconsistent case which would ultimately change the fundamental character of the suit which is impermissible. In support of such contention, h