DILIP KUMAR DEY Vs. VISWAMITRA RAMKUMAR

JUDGEMENT

(1.) In the instant application under Article 227 of the Constitution of India order no. 58 dated 03.01.2003 passed by the Learned 13th Bench, City Civil Court, Calcutta in Title Suit No. 974 of 1995 has been assailed.

(2.) The plaintiff/ petitioner contends that he is a tenant in respect of a shop room on the ground floor of premises no. 15, Radha Bazar Street, now renumbered as 60A, Radha Bazar Street, Calcutta at a monthly rental of Rs. 366.25p. payable according to English calendar month under Fida Hossain, Ahmed Bhoy and Jainul Bhoy Ahmed Bhoy is a partnership firm having office at 9, Ganesh Chandra Avenue, Calcutta 700 012. The defendant/ opposite parties have claimed themselves as new owners of the entire premises on and from 31st day of January, 1983. The plaintiff/ petitioner filed Title Suit No. 974 of 1995 praying for a declaration and permanent injunction seeking the following reliefs:- a) A decree for declaration that the decree for restitution of the suit premises in favour of the defendants passed on 06.12.1993 by the Learned Judge, 12th Bench, City Civil Court at Calcutta in Misc. Case No. 1362 of 1993 under Section 144 of the CPC is not binding upon the plaintiff; b) A decree for declaration that the plaintiff being a lawful tenant in respect of the suit premises fully described in the schedule hereunder and marked with `A' the title Execution case No. 10 of 1994 filed by the defendants for delivery of possession of the suit premises by way of executing a decree passed in Misc. Case No. 1362 of 1991 before the Learned Registrar, City Civil Court at Calcutta is not at all maintainable against the plaintiff; c) A decree for declaration that the defendants are not entitled to obtain delivery of possession of the suit premises by way of executing the decree originated in Misc. Case No. 1362 of 1993 granted by the Learned Judge, 12th Bench, City Civil Court at Calcutta; d) A decree for permanent injunction restraining the defendants, their men and agents, representatives and/or assignees from evicting the plaintiff from the suit premises fully described in the schedule hereunder by way of executing a decree which has been initiated already and numbered as Title Execution Case No. 10 of 1994 pending before the Learned Registrar Bench, City Civil Court, Calcutta, etc.

(3.) In the said suit the plaintiff filed an application under Order 6 Rule 17 of the CPC for amendment of the plaint at the stage of final hearing. While disposing of the said application by order no. 58 dated 03.01.2003 the Learned Judge, 13th Bench, City Civil Court at Calcutta has observed that during pendency of the suit the defendants took possession of the suit premises from the plaintiff on 27.03.2002 as per order passed by the Learned Judge, 9th Bench, City Civil Court at Calcutta. The plaintiff's contention is that the defendants have purchased only 15 per cent undivided share in the premises in question and after such purchase they are trying to change the nature and character of the suit premises by making addition and alteration to efface the identity of the suit premises from its original shape and size to the detriment of the interest of the plaintiff. The defendants has opposed the move and claimed that the application was filed on 05.07.2002, i.e., after 01.07.2002 and as such under the latest amendment of the Civil Procedure Code such an application is not maintainable after commencement of trial. As the plaintiff was not delivering possession of the suit premises the defendant purchasers took possession through execution proceedings with police help pursuant to an order which was ratified by the Hon'ble Division Bench of the High Court at Calcutta. The Learned Court below is of the view that if the amendment is allowed the nature and character of the suit will be changed and as the possession was taken on the strength of an order of a competent Court with police assistance the amendment is not required for proper adjudication of the dispute and at the belated stage if such amendment is allowed it will cause prejudice to the defendants and under the amended Civil Procedure Code such type of belated amendment should not be entertained without reasonable cause to the satisfaction of the Trial Court. Therefore, the said amendment petition was dismissed on contest without cost.