SUKARJAN BIBI Vs. NUR MOHAMMAD

JUDGEMENT

(1.) THIS application is at the instance of the plaintiff and is directed against the order no.20 dated May 16, 2008 passed by the learned Civil Judge (Senior Division), Second Court, Barasat in Title Suit No.40 of 2007 thereby rejecting an application under Order 6 Rule 17 of the Code of Civil Procedure.

(2.) THE short fact is that the plaintiff instituted a suit being Title Suit No.40 of 2007 for partition and permanent injunction against the defendants/opposite parties. THE defendants/opposite parties are contesting the suit. In that suit, the plaintiff/petitioner filed an application for amendment of the plaint and upon hearing both the sides on that application, the learned Trial Judge rejected the petition for amendment of the plaint. Being aggrieved, this application has been preferred.

(3.) DURING argument, the learned Advocate for the petitioner has referred to the decision of 2010 (1) CLJ (SC) 89 and thus he has submitted that amendment may be allowed if the proposed amendment will not change the character of the suit. This decision, I hold, is not applicable in the instant suit because the relief sought for is for partition and permanent injunction. But by the proposed amendment, he has wanted a declaratory relief to the effect that the decree dated August 9, 2001 is void, illegal, inoperative in law and not binding upon the present plaintiff and so on. So, the character of the suit will be changed. Moreover, he has not come to court with clean hands. So, this decision is not applicable in the instant case.