BIMAL CHANDRA MITRA Vs. NEMAI PALIT

JUDGEMENT

(1.) This is to consider an application being G.A. No. 4030 of 2003 filed by the Plaintiff/decree -holder. In the instant case Mr. Bimal Chandra Mitra by the consent of the parties was appointed Receiver in suit No. 169 of 1983 and in respect of suit premises No. 24/A Balaram Ghosh Street, Calcutta. Thereafter with the expiry of the lease period of the suit property the learned Receiver filed a suit being No. 616 of 1990 which was heard in length and decreed by this Court in favour of the Plaintiff. In course of hearing Mr. Barin Ghosh, J. was pleased to allow the amendment petition and although the necessary amendments had been effected in the body of the plaint as also in prayer (a) thereof in respect of the correct address of the suit premises i.e. Premises No. 24A, Balaram Ghosh Street in place of premises No. 24/1A, Balaram Ghosh Street, Calcutta which was erroneously entered in the original plaint, unfortunately through oversight the said corrections were not incorporated in the concise statement and schedule of the suit property. This has caused in convenience for the decree department in drawing up decree in the suit. It is also stated that after the suit was decreed the Defendant No. 1 had not taken any steps to challenge the judgment of the trial Court even after the expiry of the statutory period of appeal nor did he vacate the suit premises within the period stipulated in the Order. In such circumstances, it is prayed that the mistake in the concise statement and the schedule of the property annexed to the plaint be condoned and be amended by deleting the numerical figure '1' after premises No. '24' and to read the suit premises as 24/A, Balaram Ghosh Street, Calcutta in those two places i.e. both in concise statement and in the schedule of the property annexed to the plaint.

(2.) The petition has been seriously contested by the Defendant No. 1 by filing affidavit -in -opposition in which it is inter alia stated that at the time of trial the Plaintiff in examination -in -chief answered to question No. 22 as below:

(3.) It is alleged that the Plaintiff inspite of adequate opportunities by negligence and laches had proceeded with the above suit wholly inconsistent with the facts and documents relied on.