FAROJA BIBI Vs. SK MUSTAFA ALI

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India is directed against order no. 79 dated 13th December, 2011 passed by the learned Civil Judge (Junior Division), 1st Court at Tamluk in T.S. No.59/2005. By the order impugned, ld. trial court rejected the application for amendment filed by the present petitioner plaintiffs.

(2.) It appears that petitioner has filed a suit for declaration of title, injunction as well as other consequential reliefs in 2005. The O.P. defendants started to contest said suit by filing written statement. However, this O.P. defendants filed additional written statement on 2nd March, 2010. The hearing of the suit commenced, issues were framed on 10th May, 2011, evidence of PW-1 in chief was recorded on 24th May, 2011 cross-examination of PW-1 was completed on 16th July, 2011 the evidence of P.W.2 in chief was recorded. At this stage, the petitioner filed a petition for amendment dated 5th November, 2011 praying for inserting certain facts on the basis of averments made by O.P. defendants in their additional written statement dated 2nd March, 2010. After contested hearing ld. trial court rejected said application as proposed amendment would change the nature and character of the suit and also was barred by Section 12 of the West Bengal Acquisition of Home Stead Land for Agricultural Labourers Articians and Fisherman Act 1975. Being aggrieved the plaintiffs have filed this application.

(3.) Mr. Rakshit appearing for the petitioner submits that the court should be very liberal in the matter of amendment of the plaint. According to him, even if the relief sought was barred by limitation even then the court should have allowed the amendment keeping the question of limitation to be decided in trial. He further submits that an application for amendment should not be refused on mere technical ground. He further submits that an application for amendment should be allowed for resolving the real controversy between the parties. In support of his contention he has referred case laws , Manohar Lal v. N.B. Supply, Gurgaon, 1969 AIR(SC) 1267 , B.K. Narayana Pillai v. Parameswaran Pillai & Anr., 2000 1 SCC 712 , Ragu Thilak D. John v. S. Rayappan & Ors, 2001 2 SCC 472