MUNNILAL SHAW @ SAU Vs. SANJAY KUMAR AGARWAL

JUDGEMENT

(1.) This is an application under Article 227 of the Constitution of India wherein the present petitioners/plaintiffs have assailed the order no. 32 dated 25th August, 2015 passed by the learned Civil Judge (Junior Division), 3rd Court, Howrah in Title Suit No. 401 of 2015 by which the learned trial court was pleased to reject the application filed by the present plaintiffs/petitioners dated 21st August, 2015 on the ground that if the proposed amendment is allowed, then it will change the nature and character of the suit. Mr. Mukherjee, the learned Senior Advocate, arguing on behalf of the petitioners submitted by taking me to the plaint vis -à -vis the proposed amendment to show that actually there was no scope to change the nature and character of the suit even if the amendment petition is allowed as by virtue of such amendment petition, the present plaintiffs/petitioners had tried to furnish better particulars. He took me to the amendment petition as filed to show item -wise the proposed amendment as regards the schedule of the property.

(2.) He submitted that as per that amendment petition, the present plaintiffs/petitioners kept the "A" schedule property as a common area and did not try to grab that property. He submitted that the present amendment petition was filed in the year 2015 itself and there was no dilatory tactics on the part of the present petitioners plaintiffs. He further submitted that such an amendment application was necessary to end the lis between the parties.

(3.) In counter to all these, it is submitted by Mr. Chaturvedi, the learned Advocate, appearing on behalf of the opposite party nos. 1 to 4 that one earlier amendment petition was filed before the trial court in connection with the same Title Suit on 13/08/2015 and as per order dated 21 -08 -2015, the said amendment petition was rejected being 'not pressed'. Thus, he submitted that the present application under Order VI Rule 17 of the Code of Civil Procedure is the second application and it is the replica of the previous one filed by the plaintiffs. Thus, he contended that the second application is barred under Order XXIII Rule 1 of the Code of Civil Procedure.