SHANTI DEVI Vs. GYANTI DEVI

JUDGEMENT

(1.) This application is at the instance of the plaintiff and is directed against the order dated July 1, 2009 passed by the learned Civil Judge (Junior Division), Third Court, Howrah in Title Suit No.156 of 2007 thereby allowing an application for amendment of the written statement filed by the defendants/opposite parties herein.

(2.) The short fact is that the plaintiff instituted the Title Suit No.156 of 2007 against the defendatns/opposite parties herein praying for a decree for eviction of licensee against the defendants from the suit property, as described in the schedule of the plaint, damages and other reliefs. In that suit, the defendants/opposite parties appeared and they filed a written statement. On the basis of the pleadings of the parties, issues were framed and the suit was at the stage of recording evidence. At that stage, the defendants/opposite parties herein filed an application for amendment of the written statement praying also for counter-claim by the proposed amendment. That application was allowed by the learned Trial Judge by the order impugned. Being aggrieved, the petitioner has come up with this application. Mr. Mukherjee, learned Advocate appearing on behalf of the petitioner, submits that the application for amendment of the written statement along with a prayer for counter-claim was made at a belated stage. It was filed when the evidence was being recorded. The defendants/opposite parties herein did not mention in their application for amendment of the written statement that they could not file the application for amendment earlier in spite of their due diligence. Therefore, in view of the proviso to Order 6 Rule 17 of the C.P.C., such amendment cannot be allowed. Mr. Mukherjee also submits that by the proposed amendment admission made by the defendant can not be taken away. He submits that while the defendants have admitted in their original written statement to the effect that Doman Shaw (since deceased), husband of the petitioner, purchased the suit property in the name of the Shanti Devi, the petitioner, by the proposed amendment, the defendants/opposite parties herein have wanted to incorporate that Doman Shaw purchased the property out of his own money and that at the time of purchase the suit property was an one storied building. Ultimately, it was made a six storied building and the expenses for construction were made with the fund of the defendants. So, by the proposed amendment, the defendants have wanted to withdraw the admission made earlier in the original written statement. Such a prayer for amendment should have been rejected. He also submits that the defendants have claimed the suit property on the basis of an agreement dated December 19, 1986 by the proposed amendment, while their specific case is that the cause of action for filing the counter-claim arose on July 18, 2007 and August 28, 2007. Therefore, the learned Trial Judge has committed a gross error in allowing the application for amendment of the written statement.

(3.) On the other hand, Mr. Haradhan Banerjee, learned senior Advocate appearing on behalf of the opposite party, submits that Doman Shaw purchased the suit property in the benam of the petitioner and the consideration money was paid by him. The defendant no.1 is the wife of Doman Shaw and the other defendants are the sons and daughters of Doman Shaw. Therefore, after death of Doman Shaw, the defendants inherited the suit property as owners. So, the suit should be dismissed. The prayer for amendment of the written statement has been allowed to solve the dispute between the parties finally. The prayer for counter-claim has been made within the time limit. So, the learned Trial Judge was justified in allowing the application for amendment of the written statement upon payment of costs. Thus, he supports the judgment.