BANKIM CHANDRA BACHAR Vs. RATHIN BACHAR

JUDGEMENT

(1.) This application under Article 227 of the Constitution of India has been preferred challenging an order dated 2nd December, 2012 passed by the learned 5th Civil Judge (Junior Division) at Howrah in Title Suit No. 138 of 2008.

(2.) The broad essential facts which need to be adumbrated for a decision in the instant application are that the petitioner preferred Title Suit No. 138 of 2008 for declaration and permanent injunction against the opposite parties herein and the same was contested by the said opposite parties by filing a written statement. Subsequent thereto, the trial commenced and in the midst thereof the petitioners herein preferred an application under Order 6, Rule 17 of the Code of Civil Procedure (hereinafter referred to as CPC) and an objection to the same was filed by the opposite parties herein and upon contested hearing the said application for amendment was rejected.

(3.) Mr. Guchhait, learned advocate appearing for the petitioners draws the attention of this Court to the averments made in paragraph 4 of the plaint and submits that the facts that the defendants have encroached a portion of the petitioner's land and that on 18th July, 2008 the defendants were attempting to give fencing to the said property have been categorically averred but due to inadvertence, the prayer towards recovery of possession was not incorporated and as such the amendment was sought for through the application filed on 1st February, 2012.