ASHMA KHATOON Vs. SUBROTO GHATAK

JUDGEMENT

(1.) HEARD the learned Advocates appearing on behalf of the parties.

(2.) THIS is an application under Article 227 of the Constitution of India primarily directed against an order being order No. 26 dated 31 st July, 2004 passed by the learned Additional District Judge (Special Court) Jalpaiguri in Original Case Appeal No. 7 of 2002. By the order impugned, the petition of the defendants, being the appellants in the Court below, under Section 151 of the Code of Civil Procedure for amendment of challan by which the appellants deposited rent to the Court below, stood rejected.

(3.) THE learned Advocate who appeared for the appellants in the court below submitted that the mistakes in the challans cropped up due to the negligence of the Advocate's clerk and such mistakes were bona fide and formal in nature. This submission was opposed by the learned Advocate for the respondents in the Court below who submitted that if the challans were allowed to be admitted in torms of the prayer of the learned Advocate for the defendants/appellants, it would change the nature and character of the appeal and would also cause projudice to the respondents/plaintiffs who had acquired right by the judgment of the learned trial Court. The learned court below, after considering these submissions, was, inter alia, pleased to reject the amendment petition dated 27th May, 2004 with the following reasons : it appears on perusal of the judgment of the learned Court below that the mistakes in challans were a point of adjudication before the learned Civil judge, Junior Division and she after considering all the materials on record decreed the suit by observing that the deposits of rent were not valid. In the aforesaid facts and circumstances, at the appellate stage no such amendment can be allowed which either modifies or alters the judgment of learned Court below because such amendments cannot be said as formal in nature and the appellate Court cannot view it as bona fide mistake of the advocate's clerk. Accordingly, I find no merit in the amendment petition and hence it cannot be allowed. "