AMITAVA SENGUPTA Vs. MALATI SAHA

JUDGEMENT

(1.) Present application under Article 227 of the Constitution of India has been directed against the order dtd. 18/1/2018 passed by Additional. District Judge, Fast Track,1st Court, Alipore, South 24 Parganas, in Ejectment Appeal No. 28 of 2015 arising out of Title Suit No. 215 of 2004. Petitioners contended that petitioners' predecessor as plaintiff filed a suit for eviction against the defendant/opposite party on the ground of reasonable requirement and also on other grounds. The defendant/opposite party entered appearance in the said suit and denied all material allegations made in the plaint by filing written statement. However subsequently the defendant chose not to appear and contest the said suit. Ultimately by an order dtd. 22/4/2015 the said ejectment suit was dismissed ex-parte wherein learned trial court did not accept the plaintiffs ground for eviction including the ground of reasonable requirement.

(2.) Being aggrieved by that order of dismissal the plaintiffs/ petitioners herein preferred aforesaid Ejectment Appeal no. 28 of 2015. During the pendency of the said appeal petitioners made an application for amendment of the plaint to incorporate subsequent fact of increase of family members and dearth of accommodation and subsequent enhancement of reasonable requirement of the petitioners. Said application came up for hearing before the court below but learned court below after hearing the said application was pleased to reject the amendment application by the impugned order.

(3.) Mrs. Somoshree Saha learned Counsel appearing on behalf of the petitioners submits that proposed amendment is formal in nature and they do not in any way intend or purport to change the nature and character of the suit. she further submitted that due to passage of time the original plaintiff and subsequently his substituted son and daughter have died and now present appellants are the third generation and as such with the increase in number of members in the family the dearth of accommodation which was existing at the time of filing of the suit became more acute now and by way of present amendment, the petitioners have only tried to explain their acute shortage of space to show reasonableness of their requirement and there is no case to fill up lacuna on which judgment has been passed but the court below erroneously observed that only to fill up lacuna appearing in the trial court's judgment, the petitioner has prayed for such amendment. Learned court further observed that if the proposed amendment is allowed it may be prejudicial for the opposite party but he has failed to consider that the opposite party herein has accommodation elsewhere and she had chosen not to contest the suit and also not interested in the result of its outcome and as such question of causing prejudice to the opposite party does not arise. She further submits that it is settled law that the subsequent event can always be incorporated by way of amendment. She also submits that amendment can be incorporated at any stage of the proceeding. In the present application for amendment plaintiffs/appellants have not sought to incorporate any new fact but only tried to explain the existing fact in details i.e. the subsequent events that occurred after institution of the suit. Accordingly petitioners have prayed for setting aside the order impugned and to allow the proposed amendment.