SAMSER ALI MOLLA Vs. JILU MOLLA AND ORS.

JUDGEMENT

(1.) This Rule is directed against Order no. 67 dated Jan. 20, 1979 whereby the learned Munsif allowed an application under Order 6, rule 17, C.P.C. made by the present opp. party with a view to adding some words indicating that the application which was originally made under section 8 of the West Bengal Land Reforms Act would be regarded as one made under section 24 of the West Bengal Non-Agricultural Tenancy Act. The application which was originally made by the present opposite party was one under section 8 of the W.B. Land Reforms Act but latter, when the present petitioner put in his petition of objection to the said application under section 8 stating as the subject matter of the proceeding was a tank an application under section 8 of the W.B.L.R. Act would not lie, for according to the definition of land as it stood after the amendment in 1971 of section 2(7) of the West Bengal Land Reforms Act 'lank' ceased to be included within the meaning of agricultural land, an application for amendment referred to above was made on behalf of the present opposite party who was the original appellant before the learned Munsif. The impugned order is the Order of the learned Munsif which was made allowing the application under order 6, Rule 17 of the Code of Civil Procedure.

(2.) Mr. C.D. Roy Cnoudhury, learned Advocate appearing in support of the Rule, contends that the learned Munsif acted illegally and with material irregularity in exercise of his jurisdiction in allowing the application under section 8 of the West Bengal Land Reforms Act inasmuch as the relief claimed stood barred by limitation at the date of the filing of the application for amendment. In view of my decision rendered in an Unreported care, namely, Civil Revision Cass No. 3743 of 1978 which was disposed of on 24.1.80, I find no substance in this contention of Mr. Ray Choudhury. Hare as already pointed out the only amendment asked for is to incorporate in the application the fact that the application is one under section 24 of West Bengal Non-Agricultural Tenancy Act and not one under section 8 of the West Bengal Land Reforms Act. In my judgment referred to above relied upon several decisions including the decisions in Debabrata Bhowmik Vs. Smt. Nanibala Shom, AIR 1978 Cal. 482, Kishandas Rupchand Vs. Rachappa Vithoba, 33 Bom. 644. Pingonda Hangonda Patil Vs. Kalgonda Shidgonda Patil & Ors., AIR 1975 S.C. 363 and Bisweswar Bajpayee & Ors. Vs. Joggeswar Bajpayee & Anr., 70 C.W.N. 1095. A reference to the decisions in the cases referred to above as also to Monoharlal Vs. N.B.M. Supplies, Gurgaon, AIR 1969 SC 1267 will make it clear that even though as a general rule an amendment ought not to be allowed after the lapse of the period of limitation, In cases where the court finds that in the interest of justice the amendment ought to be allowed the few of limitation would not stand on the way of the court allowing such amendment. The law on this subject has been very succinctly stated in the following words appearing in the decision in said Monoharlal's case, "Rules of procedure are intended to be a hand-maid to the administration of justice. A party, can not be refused the relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder he had caused injury to has opponent which may not be compensated for by an order of costs. However negligent or careless may have bean the first omission, and however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. Thus it appears that when justice requires an amendment to be allowed the court can not refuse to allow, such amendment merely because of some mistake, inadvertence, infraction of rules of procedure or even negligence, The Court may refuse to allow an amendment when such amendment is found necessary by the court only in cases where tho party applying for an amendment was acting malafids or he, by his blunder, caused such injury to the opponent as may not be compensated for by cost. It is significant to note that the Supreme Court in that case holds that however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. Here injustice obviously means injustice which can not be compensated for by cost or, in other words, irreparable injury.

(3.) In the present case tho transfer which forms the basis of the original application for preemption under section 8 of the W.B. Land Reforms Act was effected on Oct. 1, 1973. The opposite party who was the applicant under section 8 of the W.B. Land Reforms Act states that he came to know of this transfer on Oct. 5, 1973 and the application under section 8 was filed on Dec. 12, 1973. Thereafter on Aug. 30, 1974 the petition of objection was filed wherein it was stated, inter alia, that as the tank is not comprehended within the meaning of the definition of land as appearing in section 2(7) of the West Bengal Land-Reforms Act the application under action 8 was not maintainable. On Sept. 15, 1978 the said application for amendment under Order 6, Rule 17, C.P.C. was made.