NILKANTHA ROY Vs. DHIRENDRA NATH MULLICK

JUDGEMENT

(1.) The petitioner is the defendant in an ejectment suit brought by the plaintiff opposite party. He has obtained the present Rule against the order dated 5th Dec., 1974 of the learned Judge, 2nd Bench, City Civil Court allowing amendment of the plaint. The plaintiff had originally instituted the said ejectment suit or in the ground that the defendant was a defaulter within the meaning of clause (i) of sub-section (i) of section 13 of the West Bengal Premises Tenancy Act, 1956. The plaintiff by the aforesaid amendment is seeking to insert in the plaint the plea that the defendant is liable to be ejected also on the ground specified in the clause (a) of sub-section (1) of section 13 of the West Bengal Premises Tenancy Act.

(2.) I am unable to hold that the learned Judge of the court below has committed any jurisdictional error by allowing the plaintiff's said prayer for amendment of his plaint in order to plead the ground specified in clause (a) of section 13(1) of the Act. The Court under Order 6, Rule 17, C.P.C. may allow either party to alter or amend his pleading at any stage of the proceeding provided such amendments are necessary in order to determine the real questions in controversy between the parties. In this case the question in controversy is whether the plaintiff opposite party is entitled to get a decree for recovery of possession of the suit premises. The plaintiff is seeking by the proposed amendment to plead an additional ground in support of his said claim. The nature of the suit has not been altered by such amendment of the plaint. It is well settled that the power to a court to allow amendment is both discretionary and wide. In the instant case, the amendment if allowed will not deprive the defendant of any of his rights which might have accrued to him by lapse of time. It is also not suggested that any question of limitation is involved in the instant case.

(3.) Mr. Roy Choudhury, learned Advocate appearing for the petitioner in support of his submissions relied upon the decision of N. C. Mukherji, J. in Arun Kumar Chatterjee Vs. Karma Rakshit, 78 CWN 572 at page 576. N. C. Mukherji, J. made a Rule obtained by a defendant tenant absolute against an order of the trial court allowing the plaintiff landlord's application for amendment of the plaint for the purpose of pleading an additional ground of ejectment. I am however unable to accept the contention of Mr. Roy Choudhury that the observations of the learned Judge at page 576 of the report should be considered as a statement of law relating to the power of the court to amend. In the facts of the said case the learned Judge held that the plaintiff should not he allowed to amend his plaint so as to plead that the defend in it was also liable to be ejected on a ground other than default. The contents of the last sentence in the paragraph of Ids judgment at page 576 would indicate that the learned Judge was inclined to hold that the plaintiff had all along known the said ground and without justification did not plead the same. In other words the learned Judge found that the application for amendment was not made in good faith.