ALOKE RANJAN ROY Vs. TAPAN KUMAR GHOSH

JUDGEMENT

(1.) This revisional application under Article 227 of the Constitution of India at the instance of the added defendant no. 8 of the suit arises out of order dated 03.04.2013 passed by the learned Civil Judge (Senior Division), 5th Court, Alipore in Title Suit No. 96 of 2008, by which learned Judge of the court below allowed the application for amendment of plaint filed by the Opposite Party No.4/plaintiff of the suit.

(2.) It appears from the materials on record that the opposite party nos. 1 to 3 filed Title Suit No.96 of 2008 against the opposite party nos. 5 to 10 for partition, declaration and permanent injunction on 02-12-2011. The opposite party no.4 was transposed from the category of defendant as plaintiff no.1 in the suit. On 27-01-2012 the opposite party no.4/plaintiff no.1 filed an application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure. It is also admitted position that issues were framed and the suit was fixed for peremptory hearing on the date of filing of application for amendment by the opposite party no.4. The Trial Court allowed the application for amendment of plaint by passing the impugned order on 03-04-2013, which is under challenge in this revision.

(3.) Mr. Satyajit Talukdar, learned counsel appearing on behalf of the petitioner submits that the application for amendment of the plaint was filed by the opposite party no.4 after commencement of trial of the suit and as such the said application for amendment cannot be allowed by the learned court below. Mr. Talukdar has relied on the decision of "Vidyabai And Others V. Padmalatha And Another", 2009 2 SCC 409 and the case of "Ajendraprasadji N. Pandey And Another V. Swami Keshavprakeshdasji N. And Others", 2006 12 SCC 1 in support of his above contention. Mr. Talukdar has also relied on the order passed by learned Single Judge on 13-09-2012 in C. O. No. 3110 of 2008 in support of his above contention. The further submission of Mr. Talukdar is that there is no averment in the application for amendment of the plaint that the opposite party no.4 could not have raised the matter for amendment before commencement of trial in spite of due diligence and as such the order passed by learned Judge of the court below is not sustainable in law.