GAYATRI ADAK Vs. SOVAN BANERJEE

JUDGEMENT

(1.) Being aggrieved and dissatisfied with the order no. 35 dtd. 14/9/2015 passed by the Additional District Judge, at Uluberia, Howrah, in Title Appeal No. 166 of 2011, present revisional application has been preferred. By the impugned order learned court below was pleased to reject appellant's prayer for amendment made under order VI rule 17 of the code of the Civil Procedure.

(2.) Petitioner contended that Hiren Banerjee since deceased inducted the petitioner/defendant as a premises tenant in respect of the suit property. On the basis of the impugned letter of surrender dtd. 22/6/1997 said Hiren Banerjee since deceased as plaintiff filed the instant suit for eviction under sec. 13(K) and (J) of the West Bengal Premises Tenancy Act, 1956 alleging surrender of tenancy. During the pendency of the suit Hiren Banerjee died intestate and according to the original plaintiff, since deceased, the defendant was monthly premises tenant of the suit premises at a rental of Rs.200.00 per month payable according to the English Calendar month. According to the deposition, adduced before the trial court the petitioner has surrendered his tenancy on 22/6/1997 and the defendant is no longer a tenant of the suit property since 1/1/1999 . Hiren Banerjee affirmed the affidavit of evidence on 8/6/2005. Petitioner contended that petitioner suffered the decree of eviction on 19/4/2011 against which Title Appeal No. 166 of 2011 was filed before the learned District Judge, Howrah which is now pending before learned Additional District Judge, Uluberia for disposal. Petitioner further contended that the original advocate of the petitioner herein died and it is under the advice of the newly appointed advocate, an application for amendment of the written statement was filed before the learned Appellate court and after contested hearing learned Appellate Court by the order impugned, rejected appellants prayer for amendment of the written statement, mainly on the grounds that it is a belated one and some facts are already on record.

(3.) Mr. Buddhadev Ghosal learned counsel appearing on behalf of the petitioner contended that learned court below has acted illegally and with material irregularity in passing the impugned order and he has failed to exercise the jurisdiction so vested to it by law. The learned court below has acted with material irregularity in rejecting the prayer for amendment of written statement on the ground of delay. He further submits that under sec. 107 of the Code of Civil Procedure (CPC) the learned Appellate Court enjoys the same power with that of the power of the trial court in respect of disposal of the said petition. In fact delay is no ground for rejection if the proposed amendment is required for effective and conclusive adjudication of the dispute between the parties. Mr. Ghosal further submits that the proposed amendment is required for elucidation of fact and if it is incorporated the opposite party will have no cause to prejudice. In this connection Mr. Ghosal has relied upon the case laws reported in (2012) 5 SCC 583, (2006) 6 SCC 498 (2001) 2 SCC 472, (2012) 5 SCC 337, AIR 1969 SC 1267 and contended that amendment petition cannot be refused on technical grounds. Mr. Ghosal further argued that even in Daji Raoji Patel's Case reported in (2012) 5 SCC 583, Apex Court refused to interfere, where amendment of pleadings allowed by First Appellate Court, 30 years after filing of suit and in Ragu Thilak D- Jon's Case reported in (2001) 2 SCC 472, Apex Court held, where it is arguable that relief sought by way of amendment would be based by law of limitation, amendment should still be allowed.