KANCHAN CHOWDHURY Vs. BAKUL CHOWDHURY

JUDGEMENT

(1.) Order dated September 16, 2010 passed by the learned Civil Judge (Junior Division), 2nd Court at Ranaghat, Nadia rejecting an application for amendment of plaint under Order 6 Rule 17, Civil Procedure Code (hereafter the Code) filed in connection with T.S. No. 114 of 2006 is questioned in this application under Article 227 of the Constitution of India. On perusal of the plaint it appears that the defendant, the brother of the plaintiff had approached her to execute a power of attorney in his favour so that even in the absence of the plaintiff, he could take effective steps on her behalf in connection with a partition suit initiated by them against other co-sharers, which is pending in a Court at Krishnagar, District Nadia. The plaintiff, it is claimed, is an illiterate lady who any how is able to sign. She had signed certain pages of a written instrument which she thought was the power of attorney, on the instruction of the defendant as well as a clerk. She had also been to a studio along with the defendant for having a photograph clicked. The power of attorney was executed on May 17, 2006 in the office of the ADSR, Krishnagar, Nadia. However, on October 10, 2006, another brother of the plaintiff called her on telephone and enquired whether she had executed a deed of gift in respect of her share of the joint property in favour of the defendant. The plaintiff was astonished to hear the same, since she had not executed any deed of gift. An application for obtaining certified copy of the registered instrument executed by her on May 17, 2006 was made. On obtaining the certified copy, the plaintiff came to learn that the defendant cunningly had created/manufactured a deed of gift instead of a power of attorney and had thereby succeeded in having her share in the joint property gifted to him. Alleging that the said deed of gift is not binding upon her, the plaintiff instituted the suit on December 7, 2006, out of which the order impugned herein arises, praying for declaration that the said deed of gift dated May 17, 2006 be declared void, illegal, fraudulent, fake and not binding upon her and for further declaration that the defendant did not derive any right, title or interest by virtue of the said deed. It was further prayed that a decree be passed declaring that the plaintiff is the absolute owner of the suit property mentioned in Schedule 'A' and for permanent injunction restraining the defendant from alienating the suit property or from doing any act harmful to the suit property.

(2.) The defendant entered appearance and filed his written statement. After issues were framed, trial commenced. In all, six witnesses were examined on behalf of the plaintiff. The defendant also filed his affidavit evidence-in-chief. In the process, four years rolled by.

(3.) It was at this stage that the plaintiff presented an application dated April 12, 2010 before the Trial Court and prayed for amendment of the plaint. She averred therein that at the time of institution of the suit, being illiterate she did not narrate her case properly to the advocate engaged by her as a consequence whereof there has been omission to state certain facts in the plaint which surfaced at the time when she "was confronted about the case by her newly engaged advocate". Amendments which the plaintiff proposed to introduce are found in the schedule appended to the application. Two paragraphs were sought to be added after paragraph 14 of the plaint, being 14(a) and (b). Paragraph 14(a) appears to be a repetition of the plaint case that the plaintiff was given to understand that she was executing a power of attorney in favour of the defendant and that she signed the document as per direction of the defendant and the advocate engaged by him which, however, is different from the plaint case in the sense that there a clerk was referred to. In paragraph 14(b), the plaintiff sought to set up a plea that the said deed was never read over or explained to her and the advocate was also not known to her. It was further claimed that though her husband and daughter had signed the deed as attesting witness and identifier respectively, their signatures "were procured by the defendant with false personification". Since in the relevant deed both Bablu Chowdhury (the plaintiffs husband) and Sampa Chowdhury (the plaintiffs daughter) had signed, alibi in respect of the husband and daughter of the plaintiff was set up and it was claimed that they were not at all present at Krishnagar registration office on the fateful day. It was also claimed that the other attesting witnesses are the henchmen of the defendant and the plaintiff never had the occasion to see them sign as attesting witnesses and in that sense the said deed was not validly attested and executed as per section 123 of the Transfer of Property Act. Certain other amendments were also prayed for, which do not form the bone of contention.