SHYAMALI GHOSH Vs. SWAPNA PALIT

JUDGEMENT

(1.) CHALLENGE is to the order dated April 9, 2009 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Title Suit No.776 of 2008 thereby allowing an application for amendment of the plaint.

(2.) THE short fact necessary for the purpose of this case is that the plaintiff / opposite party no.1 herein instituted a suit being Title Suit No.776 of 2008 before the learned Civil Judge (Junior Division), 1st Court, Alipore against the petitioner. THE petitioner is contesting the said suit. During the pendency of the suit, the plaintiff filed an application for amendment of the plaint and that application was allowed by the impugned order. Being aggrieved, this application has been preferred.

(3.) DURING the argument, Mr. Kaushik Chanda appearing on behalf of the petitioner has submitted that while considering the amendment of the pleadings, the Court though should take a liberal view but at the time of granting amendment of the written statement, contrary stands may be allowed. But with regard to amendment of the plaint, the Court should be strict. In support of his contention, he refers to the decision of Usha Balashaheb Swami and ors. v. Kiran Appaso Swami and ors. reported in AIR 2007 SC 1663 particularly paragraph no.18. With due respect to Mr. Kaushik Chanda, I am of the view that this is a general proposition with regard to amendment of the pleadings. But in the present situation, the amendment relates to a matter that happened subsequent to the filing of the suit. So, when such a situation happened, it might be included to settle the dispute between the parties once for all. Therefore, I am of the view that this decision will not be applicable in the instant situation. Similarly, Mr. Chanda, learned Advocate for the petitioner has also referred to the decision of Revajeetu Builders and Developers v. Narayanaswamy and sons and ors. reported in (2009)10 SCC 84 and thus, he submits that the Court has quite discretion in dealing with the amendment of the pleadings. But the Court?s power must be exercised judicially and with due care. He has submitted that while dealing with the application for amendments, the Court is to consider whether the amendment is necessary for determination of the real question in controversy or not. This basic test governs the Court?s discretion to grant or refuse the prayer for amendment. He has also pointed out by referring the said decision that the Court is to consider the prejudice which is to be likely caused to the other side, if the discretionary power is exercised. This is also, I am of the view, over the general proposition relating to amendment of the plaint. I have stated that the proposed amendment has been allowed by the learned Trial Judge in order to solve the dispute between the parties once for all. So, subsequent events should be taken care of to solve the dispute between the parties. The question of suffering prejudice by the defendant does not arise at all in the instant case. So, this decision will not be of helpful to the petitioner in disposing of this revisional application.