RATAN FADIKAR Vs. RABIN SAMANTA

JUDGEMENT

(1.) The petitioner in this revisional application under 227 of the Constitution is the defendant in a suit for declaration and permanent injunction, pending on the file of the learned Civil Judge (Junior Division), 2nd Court, Howrah. The suit was instituted on March 12, 2007 by Sri Dwija Swaran Dutta (since deceased) (hereafter Dwija Babu) praying for a decree declaring that a purported sale deed dated March 15, 2004, executed by him in favour of the defendant/petitioner (hereafter the defendant) is void, illegal, inoperative and not binding, being a product of fraud, misrepresentation and undue influence, and for a decree of permanent injunction restraining the defendant from creating disturbance in his peaceful possession of the suit property. Dwija Babu passed away on March 20, 2007. After his death, his legal representative has been brought on record by substitution, being the opposite party herein (hereafter the plaintiff), who is prosecuting the suit. He claims that he is the executor/legatee of a will of Dwija Babu.

(2.) On service of summons, the defendant entered appearance and filed his written statement on February 29, 2008.

(3.) Recording of evidence of witness on behalf of the plaintiff was in progress before the trial Court. At this stage, the defendant filed an application under Order 6 Rule 17, Code of Civil Procedure (hereafter the Code) on May 20, 2009 for incorporating amendment in his written statement, whereby he intended to set up a counter-claim with prayers for decree (i) declaring that he is the absolute owner of the suit property and that the substituted plaintiff has no right, title and interest in respect thereof, (ii) for eviction of the substituted plaintiff, (iii) damages and (iv) costs. According to him, the written statement was drafted in hot haste and through oversight certain facts which ought to have been mentioned there were not mentioned. It was only during a consultation process that the omission was noticed, necessitating the prayer for amendment.