PALLAB ROY Vs. COMMERCIAL PROPERTIES AND MERCHANDISE LTD

JUDGEMENT

(1.) This Court has heard the learned Advocates for the respective parties. The opposite party has filed a suit against the petitioner for a decree for a recovery of khas possession of the suit premises, mesne profit and permanent injunction. It appears that the opposite party has alleged that the petitioner has committed breach of some of the conditions of the lease in question and as such, the suit was brought on the ground of forfeiture of lease. In such suit the opposite party intended to amend his plaint by making an application to that effect and in the proposed amendment the opposite party intended to introduce the allegation that the lease, which was granted by the predecessor-in-interest of the opposite party in favour of the predecessor-in-interest of the petitioner for a term of 99 years, commenced from 1st February, 1909 and the said lease has expired on 31st January, 2008. According to the opposite party, the lease expired during the pendency of the suit and in order to bring such subsequent event on record, the application for amendment of the plaint was filed. The amendment application was contested by the petitioner in the learned Court below and the learned Trial Court by the impugned order has allowed the application for amendment of plaint by observing, inter alia, that the proposed amendment will not change the nature and character of the suit.

(2.) The learned Advocate for the petitioner has submitted that proper reason has not been assigned by the learned Trial Court while passing the impugned order and the learned Trial Court also did not take into consideration the fact that inconsistent pleadings have been sought to be introduced by the opposite party. THE said learned Advocate also submitted that paragraph No. 22 of the original plaint, which deals with the cause of action, has also not been sought to be amended and as such the proposed amendment cannot be allowed. THE learned Advocate cited a decision in the case of P.A. Ahammed Ibrahim vs. Food Corporation of India, 1999 AIR(SC) 3033 in support of his contention that if the proposed amendment changes the nature of the suit and introduces a case in- consistent with the case already made out by the opposite party, then such proposed amendment should not be allowed. It appears from the facts of the said reported case that that was a case where an application under section 21 of the Arbitration Act, 1940 was sought to be amended so as to convert the said application as a plaint for recovery of money. Thus, factually the said reported case was decided on absolutely different set of facts and the present case is quite distinguishable from the facts of the said reported case. It is true that the learned Trial Court should have assigned proper reasons in detail while allowing the application for amendment of the plaint but this Court is of the view that since the matter has been brought for decision before this Court, it would be proper to decide the matter as to whether or not the proposed amendment should be allowed rather than remand the matter back to the learned Trial Court for another round of litigation.

(3.) The application under Article 227 of the Constitution of India is disposed of in terms of the above order.