AJAY KUMAR PAUL Vs. SUSHIL KUMAR SAH

JUDGEMENT

(1.) The plaintiffs in a suit for declaration and injunction relating to an alleged illegal construction seek to revise an order rejecting the application for amendment of the plaint after several witnesses had been called in course of the trial. The plaintiffs insist that a mechanical adherence to the proviso to Order 6 Rule 17 of the Civil Procedure Code cannot result in injustice being occasioned to a party and the proviso does not mandate a Court abdicating its duty to ascertain whether a proposed amendment brings to the fore the real controversies between the parties. The petitioners say that notwithstanding the 2002 Amendment to Order 6 Rule 17 of the Code, the two guiding factors still continue to be the interest of justice and the real controversy tests, as has been recognized recently in a judgment STATE OF MADHYA PRADESH V/S UNION OF INDIA & ANR, 2011 12 SCC 268. The case run in the plaint is that the first defendant had apparently made an illegal construction over a part of the plaintiffs' property in what is described as Schedule 'C' to the plaint. The plaintiff's allege, inter alia, at paragraphs 9 to 11 of the plaint, that following the construction work being taken up by the first defendant, the plaintiff's complained to the Howrah Municipal Corporation and even to the police authorities and instituted proceedings under section 144 of the Criminal Procedure Code. Paragraph 11 of the plaint refers to the plaintiffs' objection having been taken up by an assistant engineer of the Howrah Municipal Corporation and a hearing being given on February 9, 2009. The plaintiffs, however, recount in the plaint that neither the municipal corporation nor the first defendant made the plaintiffs aware of the outcome of the hearing.

(2.) In the written statement lodged by the first defendant, it was vaguely stated that the construction had been undertaken as per the rules and that there was some regularisation upon requisite fees being paid by the first defendant. There was no assertion that the first defendant had paid any fine or penalty; the words used were, "(the) renovation work has been regularized by the HMC by accepting the amount from the defendant No. 1 as per rules." Despite the categorical assertion in paragraph 11 of the plaint that a hearing on the plaintiffs' objection had been taken, up by the corporation but the plaintiffs had not been intimated the result thereof, the first defendant glossed over such aspect of the matter in the written statement filed in the year 2010. The second and third defendants--the corporation and its mayor--also filed a written statement around the same time. The averments in paragraphs 3 to 19 of the plaint have been traversed at paragraph 12 of such written statement. Again, the second defendant, which was called upon to address the specific averments in paragraph 11 of the plaint, did not indicate the result of the hearing conducted before it or that some infraction of the rules had been committed by the first defendant which had subsequently being regularised by the corporation.

(3.) It was in course of a sub-assistant engineer of the corporation being called as witness by the plaintiffs that it came to light that there was some alleged illegality or irregularity in the construction and that the matter had apparently been regularised. Shortly after the sub-assistant engineer stepped off the box in the suit, the plaintiffs applied in early 2012 for amendment of the plaint, to incorporate both the events subsequent to the hearing given to the plaintiffs by the corporation on February 9, 2009 as apparent from the deposition of the said witness and an additional relief for annulment of the process of regularisation.