ASIT BARAN GHOSH Vs. SRI ASHES KUMAR GHOSH

JUDGEMENT

(1.) The present application under Article 227 of the Constitution of India is at the instance of the defendant who is facing eviction from the suit property being aggrieved by the order dtd. 15/3/2021 passed by the learned Judge, 2nd Bench, City Civil Court at Calcutta on 15/3/2021 in Title Suit No. 1746 of 2018 whereby the amendment petition filed by him was rejected with the finding no amendment can be entertained after the trial and when there is no utterance in the amendment petition that in spite of due diligence he could not raise the matter prior to the commencement of the trial.

(2.) It has been contended by learned Advocate for the petitioner, that the petitioner is a Cancer patient that he could not apprise his previous Advocate about all the facts and circumstances of the case along with documents due to his treatment in different hospitals and due to mental disturbances. That on appointment of a new counsel it was found omission of material facts in the W.S. In order to incorporate such material facts the defendants has filed an amendment application after the framing of issue but before recording of the evidence of the witnesses, but learned court below not only failed to take into consideration such facts but also the settled principle that amendment can be allowed at any stage and provision contained in Order 6 Rule 17 of C.P.C. is directory and not mandatory.

(3.) He in support of such contention referred to Sree Sree Iswar Radha Behari Jew v. Malati P. Sone reported in AIR 2019 Calcutta 131, where Hon'ble Division Bench of this Hon'ble High Court held that " There is a distinction between when the trial stage commences in the life of a civil suit and when trial actually commences within the meaning of the two relevant expressions used in the proviso to Order 6 Rule 17 of CPC. Ordinarily, the trial stage commences in a suit immediately upon issues being determined. However, it is not immediately thereupon that the trial in a suit commences in right earnest and the commencement of the trial is only when any witness takes to the box, whether to prove his affidavit of evidence or to prove any document to be tendered into evidence or to face any cross-examination for, it is at this stage that the Court applies its judicial mind to examine the evidence or to consider whether a particular document is to be received in evidence or to consider the permissibility of the questions put in cross-examination. It is also open to the Court to put its own questions to the witness and, when the Court does so, it surely applies its mind for the purpose of assessing the merits of the lis. If the purpose of the 2002 Amendment to the Code, in general, and to O.6,R.17 thereof, in particular, is to expedite the disposal of suits, such provision cannot be seen to encourage a multiplicity of proceedings. If a key matter that goes to the root of the claim is found to have been mistakenly not incorporated in the original pleadings and, by reason of the mandatory command in the proviso to O. 6, R. 17 of the Code, the application for amendment is not permissible to be entertained, the Court may readily accede to a prayer for withdrawal of the suit with liberty to file afresh under Order 23, 'R. 1 of the Code. However, such second bite of the cherry, so to say, would not be available to a defendant even if a key matter was not incorporated in such defendant's written statement and the bar under the proviso comes into operation. It is, thus, that the expression "in spite of due diligence" has to be read down to allow an element of discretion to come into play for the avowed purpose "of determining the real questions in controversy between the parties" of O. 6, R.17 of the Code. But that does not imply that even if there is no plausible explanation, a key amendment applied for at a stage when the bar operates may be allowed for the mere asking. The expression "commencement of trial" in the proviso to O. 6, R. 17 of the Code would imply the date when the court first applies its mind after the affidavit of evidence is filed and when the first witness proves his affidavit of evidence or such witness seeks to prove a document for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier."