GOPA SEN Vs. KANHAILAL BHARAT MAL GUGAR

JUDGEMENT

(1.) The amendment application for incorporation of a counter-claim, arises out of an order dated October 12, 2023 passed by the learned Additional Civil Judge, (Junior Division) at Alipore in Title suit number 904 of 2018. By the order impugned, the learned Court rejected an application for amendment of the written statement, on the ground that there was substantial delay in filing the application. The Court also found that the amendment was not necessary for adjudication of the dispute between the parties.

(2.) The amendment application was filed on the date fixed for framing of issues. There was no explanation as to why the delay had occurred. While rejecting the application for amendment, the learned Court observed that the plaintiff filed the suit for eviction of the defendant on the ground that the defendant was a trespasser. The defendant entered appearance and filed the written statement on February 8, 2019. Subsequently, after disposal of the interlocutory applications, June 6, 2023 was fixed for framing of issues. On the same date, an application was filed for amendment of the written statement.

(3.) The defendant contended that in view of the contentions of the parties in the interlocutory applications and the orders passed therein, incorporation of a counter-claim by amending the written statement was necessary. The plaintiff filed an objection to the said application on the ground that amendment of the written statement was sought for after 4.5 years from filing of the written statement, as a dilatory tactic and with mala fide intention. Further contention was that the pleadings sought to be incorporated by the amendment, had already been averred in the written statement. Although, the court was of the view that the issues had not been framed and the amendment application could be brought at any time prior to framing of issues, the delay of 4.5 years in filing the amendment application, was nothing but a dilatory tactic and should not be encouraged. The conduct of the defendant was taken note of by the learned Court while rejecting the said application. The Court noted that the suit was initially fixed ex parte. When the suit was fixed for evidence, the defendant appeared and filed a written statement. The order by which the suit was fixed for ex parte hearing was vacated and the written statement was accepted by the order of the Court dated February 12, 2019. Subsequently, after the passage of 4.5 years, the defendant again filed an application for amendment, seeking incorporation of a counter-claim. Such application was filed on the date on which the suit was kept for framing of issues. From the conduct of the defendant, it was difficult to hold that the defendant had acted in good faith and the action was bona fide. According to the court, no cogent reasons had been assigned as to why the delay had occurred. Mere averment that pursuant to the developments which took place during the pendency of the suit and the orders passed by the learned Court, it was imperative that the counter-claim should be filed, would not be sufficient explanation for the delay. Hence, the prayer for amendment of the written statement was rejected. The learned Court relied on certain decisions of the Hon'ble Apex Court and held that the Court also did not find that the counter-claim was necessary.