HIRALAL BANERJEE Vs. ANJALI BANERJEE

JUDGEMENT

(1.) This Revisional Application has been preferred under Article 227 of the Constitution of India against the order no. 31 dated 09/2/ 2007 passed by the Civil Judge (Junior Division) 2nd Court, Chinsurah in Title Suit no. 44 of 2006.

(2.) It is alleged in the revisional application that the petitioner filed Title Suit no. 44 of 2006 in the court below against the defendants praying for decree for declaration and permanent injunction. In the plaint it was alleged that the 'A' schedule property belonged to the petitioner's father Late Nalinaksha Banerjee, who died intestate leaving behind his wife, three sons, including the petitioner and one married daughter as his legal heirs. On 14/12/1990 the wife and daughter of Nalinaksha Banerjee jointly executed a deed of gift in respect of their 2/5th undivided share in the A schedule property along with construction therein in favour of the three sons including the present petitioner. After the registration of the said deed of gift, the petitioner along with his two brothers became the joint owners of the entire 'A' schedule property. On 14/12/1990 by another deed of partition the three brothers partitioned the 'A' schedule property along with construction thereon in equal share. But as subsequently situation was changed, so the petitioner filed the Title Suit against the defendants praying for decree of declaration and permanent injunction. Due to mistake, the total area of the 'A' schedule property of the plaint was described as 110 sataks instead of 104 sataks. In order to rectify the defect, the petitioner/plaintiff filed a petition praying for amendment of the plaint which was required for proper adjudication of the suit. In the said amendment petition the area of the plot numbers, as mentioned in the 'A' schedule property was correctly mentioned showing thereby the total area to be 104 sataks instead of 110 sataks. The respondent nos. 1 and 2 filed objection against the said amendment prayer. Ld. Trial Court by his order dated 9/1/2007 was pleased to reject such amendment petition. Being aggrieved and dissatisfied with the said order of the ld. court below, this revisional application has been preferred as per provisions of Article 227 of the Constitution of India. It is claimed in the revisional application that the ld. Trial Court failed to appreciate that the amendment, as sought for, was absolutely required for proper adjudication of the suit in between the parties and it will, under no circumstances, change the nature and character of the suit. The rejection of the prayer for amendment, as filed by the plaintiff/petitioner, by the ld. Trial Court, has caused failure of justice and the ld. court below failed to exercise the jurisdiction, as given to him by the statute. As such, the plaintiff/petitioner has filed this revisional application praying for setting aside the impugned order passed by the ld. Trial Judge and thereby to allow the amendment petition, as filed in the court below.

(3.) The respondents contested this revisional application. In fact they have filed one vacating application praying for vacating the interim order of stay, as passed in this revisional application. According to the respondents, total area of the 'A' schedule property, as mentioned in the plaint, was correctly described as 110 sataks instead of 104 sataks, as claimed by the plaintiff/petitioner.