GHULAM MOHIUDDIN Vs. OFFICIAL ASSIGNEE CALCUTTA

JUDGEMENT

(1.) This is an application for amendment of the plaint which has been instituted on May 28. 1971 inter alia for a declaration that the purported lease dated June 23, 1964 referred to in paragraph 20 (a) of the plaint, the purported agreement of tenancy dated May 1, 1964, referred to in paragraph 20 (b) of the plaint, and the purported tenancy referred to in paragraph 20 (c) of the plaint are null and void, inoperative and not binding on the plaintiffs. Alternatively, a declaration that the sale of the premises No. 2, Chingrihatta Lane, Calcutta by the defendant 1 to the plaintiffs Nos. 1 and 2 and one Golam Rasul since deceased is null and void and for other reliefs The petitioner's case in the plaint in short is that they are absolute owners of premises No. 2, Chingrihatta Lane. Calcutta, which premises was the subject-matter of various proceedings and purchased by the plaintiffs Nos. 1 and 2 and one Golam Rasul (since deceased) in execution proceedings at an auction sale held by the defendant No. 1.

(2.) The petitioners' further case is that after purchase of the said property the plaintiffs Nos. 1 and 2 and the said Golam Rasul came to know of certain proceedings filed by the defendant No. 2 Jamela Begum, against her husband Shamsuddin the previous owner of the said premises claiming Rs. 50,000 as dower, and that Shamsuddin had allowed an ex parte de-cree to be suffered against him. It is alleged that in execution of the decree passed in that suit No. 1172 of 1958. premises No. 2, Chingrihatta Lane, Calcutta was attached and sold in execution proceedings and purchased by the decree-holder wife. On 10th May, 1963, the plaintiffs Nos. 1 & 2 and the said Golam Rasul (since deceased) filed a suit being Suit No. 833 of 1963 in this Court against the defendants Nos. 1 and 2 inter alia for a declaration that the decree passed in the said suit No. 1172 of 1958 was null and void and for a declaration that the sale of the said premises in purported execution of the decree was also null and void, and for other reliefs. On September 1, 1967 the defendant No. 2 consented to a decree being passed setting aside the sale in her favour. Subsequently. the plaintiffs came to know that although the defendant No. 2 had no right, title and interest in the said premises, she had purported to create a lease in favour of the defendant No. 3 J. B. Norton & Sons Ltd., a purported tenancy in favour of the defendant No. 4 A. K. Products, and had also a purported tenancy in favour of the defendant No. 5 Bengal Rubber Manufacturing Co. and it is these agreements and/or leases executed by the defendant No. 2 which are sought to be challenged in this suit. The defendants Nos. 3 and 4 have alone entered appearance and filed their written statements in this suit and the defendants Nos. 1, 2 and 5 have not entered appearance nor filed any written statement herein. The matter came up for hearing before me on June 24, 1977 and was part heard. On June 27, 1977 the next date of hearing the plaintiff's counsel prayed for an adjournment of the suit, and he submitted that it was necessary to amend the plaint for the purpose of determining the real controversy between the parties. Thereafter, this application for amendment was moved and Mr. T. P. Das, appearing with Mr. B. K. Chatterjee counsel for the petitioners conceded fairly and squarely that there had been blundering mistakes in the plaint which had to be deleted and also certain facts were necessary to be incorporated. In para 10 of the petition it was stated that the said amendments by deleting certain paragraphs and also the alternative relief prayed for. and the incorporation of certain facts were necessary for the ends of justice and for proper determination of the issues between the parties, and that no injustice will be caused thereby.

(3.) Counsel appearing on behalf of petitioners contended that the alternative relief for declaration that the sale of the said premises to the plaintiffs and the said Golam Rasul be declared null and void was an obvious mistake, as the plaintiffs had instituted this suit as owners of the said premises and there could be no question of challenging their own title. Counsel for the petitioners on the same grounds submitted that paragraphs 25 and 26 of the plaint wherein it is inter alia stated that the defendant Official Assignee should have known about the serious defects of title to the said property and that the Indenture of Conveyance dated March 29, 1963 executed by the Official Assignee in their favour was a sale of a mere right to litigate should be deleted from the plaint as the same had been stated by negligence and/or inadvertence and/or mistake on the part of the learned draftsman.