SWAPAN SINHA Vs. USHA RANI SAHANA

JUDGEMENT

(1.) This Revisional Application has been filed by defendant No. 2 of Title suit No. 268 of 1988, challenging the order dated 15th January, 1991 passed by learned Court of the 6th Munsif at Howrah whereby the petition under Order 6 Rule 17 of the Code of Civil Procedure filed by the plaintiff seeking amendment of plaint and the prayer portion was allowed. Suit was filed by the plaintiff praying decree of declaration of passage as discribed in the schedule, decree of permanent injunction restraining the defendants. Temporary injunction against the defendants restraining from disposing or transferring to the suit poverty to private passage to 3rd party also was prayed. For adjudication of the matter, it is necessary to consider the plaint also. In the plaint, in paragraph 17, plaintiff has submitted the following:

(2.) Written statement was filed denying the plaintiffs title over the passage. The parties led evidence and the evidence of the parties has been closed by examination and cross-examination of the witness and the matter was fixed for argument. At this juncture, plaintiffs filed the said application for amendment praying the following amendments in the plaint and prayer:

(3.) The learned Court below allowed such amendment by directing payment of cost to the defendants. Defendants are aggrieved by such amendment and have come up in the revisional application. It is submitted by the learned Advocate of the petitioner that by the said amendment, plaintiff has been allowed to take inconsistent plea, in one breath the right to passage as owner, in other breath of the easement right over the said passage. It is submitted by the learned Advocate of the petitioner that both cannot co-exist. Though it is a settle legal proposition that in the matter of amendment of the plaint and/or written statement, the Court will consider it liberally to avoid the multiplicity of any proceeding. It has been further settled that the conflicting please can be taken so long such is not in the form of withdrawal of admission as earlier made. For consideration of this aspect of the matter whether the impugned order can be sustained and the learned Court below acted with illegality, the concerned Easement Act 1882 is relevant for reference. Section 4 of the said Easement Act is quoted in extenso for appreciation of the matter: