JASIMUDDIN PURKAIT Vs. RABIJAN BIBI

JUDGEMENT

(1.) This application is at the instance of the plaintiff and is directed against the order no.101 dated 02.05.2006 passed by the learned Civil Judge, Third Court, Baruipur in Title Suit No.153 of 2001 thereby rejecting the petition dated 09.03.2006 for amendment of the plaint with costs.

(2.) The predecessor-in-interest of the petitioner and others filed a title suit for declaration of title and permanent injunction in respect of the suit property as described in the schedule of the plaint against the defendants/opposite parties before the learned Civil Judge (Junior Division), Third Court at Baruipur being the Title Suit no.140 of 1996. That suit was subsequently renumbered as Title Suit No.153 of 2001. In that suit, the plaintiffs described the area of the suit land as 26 decimals of land. Thereafter, the plaintiffs filed one application for amendment of the plaint for deleting the word 26 decimals and inserting the word 67 decimals in place of 26 decimals meaning thereby the area of the suit plot would be 67 decimals of land. That application for amendment of the plaint was rejected by the impugned order. Being aggrieved, the plaintiff/petitioner has preferred this application.

(3.) Upon hearing the submission of the learned Advocate of both the sides and on perusal of the materials on record, I find that the proposed amendment is simply for change of the area of the suit land from 26 decimals to 67 decimals of land. The contention of the opposite parties is that such prayer could not be granted because initially the claim was 26 decimals of land. By insertion of the word 67 the admission is being withdrawn by the proposed amendment and for that reason the defendants/opposite parties would be prejudiced. The learned Advocate for the defendants/opposite parties has referred to the decision of Muni Lal Vs. The Oriental Fire & General Insurance Company Ltd. & Anr. reported in AIR 1996 SC 642. In that decision, the plaintiff/appellant sought for amendment of the plaint seeking for payment of compensation for loss of the truck and the permission for amendment was sought for in the appeal. The Hon'ble Apex Court held that the plaintiff /appellant could not be permitted to amend the plaint after suit for relief in question is barred by time during pendency of the proceedings. In the instant case, it is not the situation, initially the claim was over the area of 26 decimals of land and subsequently the claim was made to the extent of 67 decimals of land. This is, I hold, cannot be treated as withdrawal of the admission made earlier. In the case of Muni Lal (supra) one, altogether, new prayer has been sought for and that was rejected. Rather, in the instant case, as per decision of Pankaja & anr. Vs. Yellappa (D) by L.Rs. and ors. reported in AIR 2004 SC 4102 amendment sought for after relief is barred by limitation can even be allowed in appropriate cases if that subserves cause of justice and avoids further litigation. Therefore, in order to avoid further litigation and to settle the dispute once for all, I am of the opinion that the decision of Pankaja & Anr. (supra) which is more applicable in the instant situation and it should be followed.