ABDUL HAMID Vs. RUPVAN NESSA BIBI

JUDGEMENT

(1.) Order impugned dated 4th October, 2010 passed by the learned Civil Judge (Junior Division), 1st Court, Basirhat, North 24 Parganas in Title Suit No. 104 of 1994 rejecting the prayer for amendment on fifth occasion is under challenge in this revisional application. Mr. Gupta, learned counsel appearing for the plaintiffs/petitioners submits that the suit was instituted in 1994 claiming that the schedule properties in the plaint are owned by them as joint properties held jointly with the opposite parties. The plaintiffs/petitioners prayed for permanent injunction so that the defendants/opposite parties cannot dispossess the plaintiffs from the properties in question. They have also prayed for costs and/or any order or for further reliefs.

(2.) In the plaint schedule of properties was described total area of land as claimed by the plaintiffs is 109 decimals. Mr. Gupta submitted that the plaintiffs/petitioners moved the application for amendment to remove some mistakes but unfortunately, learned court below did not allow such amendment. Mr. Gupta submitted that learned court below was wrong in holding that the plaintiffs/petitioners ought to have shown their due diligence since they are making this application for amendment after completion of trial by both sides and also argument completed on behalf of the defendants/opposite parties. Mr. Gupta submitted that proviso to Order VI rule 17 is not applicable in the instant case since the suit is of 1994. He further submitted that there are catena of decisions to that effect and according to him, learned Judge has gone wrong to conclude on the basis of proviso to Order VI, rule 17. Mr. Gupta then submitted that merely because the suit is at argument stage or crossed period of 19 years cannot be a ground of rejection of such prayer.

(3.) Mr. Gupta submitted whether the amendment is necessary for proper adjudication of the issues involved in the suit are to be looked at. He submits that the learned court below is wrong in its conclusion that amendment if allowed, would change the nature and character of the suit. He also submits that the learned court below ought to have taken liberal approach in cases where such type of prayers are made. Mr. Gupta further submitted that the provisions under Order VI, rule 17 are legislated for minimizing the litigation. He submits in case amendments are not allowed, then further litigation would be invited and there would be multiplicity of proceedings. He submitted that the learned court below did not apply its mind properly. Therefore, the order impugned is not sustainable in law.