PRANABESH CHANDRA MUKHERJI Vs. SNIGDHA MUKHERJI

JUDGEMENT

(1.) By this Revisional application the Defendants in Title Suit No. 94 of 1977, inter alia, for partition challenged Order No. 134 dated June 5, 1991, and Order No. 136 dated September 7, 1991, passed by the learned Asstt. District Judge, Third Court, Alipore. By the first order, the learned Asstt. District Judge allowed a prayer for amendment made on behalf of the Plaintiffs, who are opposite parties in the present application for Revision and by the second order, the learned Judge permitted the Plaintiffs to recall a witness, viz. P.W. 2.

(2.) We have heard Mr. Roychowdhury in support of the Revisional application and Mr. Bagchi on behalf of the Plaintiffs/opposite parties. It appears admitted that in the suit for partition Mr. Roychowdhury's clients were basing their claim of title to the disputed property on a document allegedly executed by the husband of opposite party No. 1 in the year 1972, which was challenged on the ground of absence of mental and physical capacity of the executant of the document. It further appears from the materials produced before us, as part of records of the trial Court, that for the purpose of substantiating that the executant had mental capacity, execution of certain other documents relating to properties, which were not subject -matter of the instant suit, allegedly executed by the same executant in the years subsequent to 1972, had been pleaded in the written statement a fact and on the basis of such pleading as also in the context of the deposition in examination -in -chief of the Plaintiff who deposed as P.W. 2, questions were put in cross -examination on behalf on Mr. Roychowdhury's clients, Defendants in the suit, touching the said documents, which did not relate to the properties in the instant suit. In the background of such facts, although the suit was instituted in the year 1977 and written statement was filed on or about February 21, 1978, the application for amendment was made on or about May 8, 1991, along with an application for leave to recall P.W. 2, which was filed on June 17, 1991, after the Order No. 134 had been passed.

(3.) As far as the principles governing the prayers for amendment of the plaint are concerned, the position is well -settled. The amendment of the plaint should be allowed on a stricter scrutiny though the general principle governing such prayers for amendment, namely, that all amendments, which are needed for a complete and effective adjudication of the dispute between the parties are concerned, ought to be liberally allowed, does hold good even with regard to the amendments of the plaint. On behalf of the contesting parties a number of decisions of the Supreme Court as also this Court have been cited which reiterate the above legal position unequivocally. The said principles no doubt apply with full force to the facts of the present case, but at the same time there is no authority which permits a court, while giving effect to the above principles, to overlook the basic considerations about the nature of the suit, the controversy involved therein and the nature of the issues which require an effective adjudication. In the instant case, the issue which is required to be decided and which has been set up by the Plaintiff for justifying the prayers for amendment and recalling of P.W. 2, relates to the mental and physical capacity of Sunil Mukherjee, the executant of the disputed deed on the basis of which the contesting Defendants claim to derive title. As already indicated none of the said deeds relates to the disputed property in the present litigation. The parties to the said deeds also are not parties to the present litigation nor is there any dispute between the said parties and the present Plaintiffs calling for an adjudication in the present suit. The effect of execution of the said deeds by late Sunil Kr. Mukherjee at best can constitute a piece of relevant evidence on the question of his mental or physical capacity after the date of execution of the deed involved in the present litigation. Being evidence, the said facts cannot be pleaded in the plaint on behalf of the Plaintiffs in view of the specific bar created by Order VI, Rule 2 of the Code of Civil Procedure. From a practical standpoint also the Court must not be permitted to express any view on the validity and enforceability of the deeds which are not the subject -matters of the present litigation as the persons to be affected by such pronouncement are no parties to the present dispute. The emphasis laid by Mr. Bagchi on the averments made in the written statement is of no significance as pleading is no evidence by itself. The fact of execution of the deeds relating to Bihar properties not being the subject -matter of dispute, as far as the instant suit is concerned, need not be relied upon by the Plaintiffs for their claim or defense and Court also will in no way be impeded ineffectively and completely adjudicating the present dispute notwithstanding absence of pleading of the said fact. Thus, on the touch -stone of basic requirement for allowing an amendment the Plaintiffs' prayer fails.