ASHOKE KUMAR BHOTIKA Vs. ASHA RAO & ORS.

JUDGEMENT

(1.) In this revisional application petitioner has challenged the order dated June 6, 2017 passed by learned Civil Judge (Senior Division), 4th Court, Alipore, District- 24 Parganas in connection with Title Suit No. 20 of 2009 previously numbered as Title Suit No. 100 of 1994, inter alia, on the grounds that if the order of amendment is allowed to stand with the averments made in Paragraphs 1A, 3A, 3B, 3C and 8A and the properties mentioned in Schedule D, then it would amount to change in the nature and character of the suit; secondly, incorporation of new facts by way of amendment would lead to de novo trial and thirdly, that amendment of plaint was allowed at a belated stage without explanation in delay in filing amendment petition and lastly, that the plaintiff/opposite party no. 1 was aware of probate case filed in the year 2013 but no such fact has been incorporated in the amended plaint dated June 17, 2015.

(2.) To speak precisely, the opposite party no. 1 as the plaintiff filed a suit for partition by metes and bounds and accounts against the defendants. The defendant no. 1/petitioner herein and defendant no. 7 Savitri Devi Botika, (since deceased) have contested the suit by filing written statement on 26.4.1995 and additional written statement was filed by D.W. 1 and D.W. 7. The defendant no. 2 also filed separate written statement on 04.01.2008 denying all material particulars made in the plaint. The plaintiff/opposite party no. 1 had filed an application under Order 6, Rule 17 of the Code of Civil Procedure, on November 21, 1996 contending that she stays in Bangalore and was unable to get hold of the properties of late Durga Prasad Botika, deceased father of the petitioner as well as plaintiff. The said application was allowed and amended plaint was filed on September 4, 1997. After the plaintiff/opposite party no. 1 closed her evidence, D.W. 1 adduced evidence but no step was taken on behalf of the D.W. 2 as he did not produce any witness for further examination. So, learned Court had no option but to close evidence of D.W. 2. Then the defendant no. 2 filed an application under section 151 of the Code of Civil Procedure, 1908 on April 7, 2011 for reconsideration of the order dated January 6, 2010 and the learned trial Court allowed the prayer of D.W. 2 to adduce evidence since there was a mistake in fixing the date for cross-examination of P.W. 1 by defendant no. 2 on May 18, 2011 and another mistake cropped up by fixing the date for cross-examination of D.W. 1 on May 27, 2011 by the defendant no. 2 whose evidence was already closed on July 11, 2001, the petitioner preferred an appeal being FMA 546 of 2007 before this Hon'ble Court against the order which was allowed directing the defendant no. 1, the petitioner herein to maintain accounts and submit quarterly statement before the trial Court and further directed to expedite the suit as far as possible by June 30, 2011. The petitioner had also moved an application under Article 227 of the Constitution of India on being aggrieved by the order dated May 6, 2011 by which D.W. 2 was allowed to give evidence and also preferred a revisional application against order dated May 18, 2011 and civil revisional applications being C.O. 2108 of 2011 and C.O. 2533 of 2011 disposed of analogously by the order dated 29.8.2014. The plaintiff/opposite party no. 1 filed another application under Order 6, Rule 17 read with section 151 of CPC which was also allowed by the learned Trial Court vide order dated June 6, 2017. Mr. Probal Kumar Mukherjee, learned counsel for the petitioner submitted that by the impugned amendment, new facts have been incorporated when the trial has been completed and successive amendments have been carried by the plaintiff with full knowledge of probate case only to delay the proceeding in the suit and so also the probate suit.

(3.) Mr. Mukherjee submitted that plaintiff's evidence was completed in the year 1998 and so also the evidence of D.W. 1 was completed. So, the amendment should not have been allowed by the trial Court as it results in de novo trial of the suit. To fortify his such contentions, he relied on a decision in case of Aktar Hossain and Ors. v. Susama Rani Sahoo and Ors. reported in (2001) 3 CHN 228 wherein relying on another decision of the Apex Court in A.K. Gupta and Sons Limited v. Damodar Valley Corporation (AIR 1967 SC 96), holding that in the matter of allowing amendment of pleading, the general rule is that a party is not allowed by amendment, to set up a new case or a new cause of action. Reliance is also placed in case of Sadhu Sharan Singh v. Deonath Saran Rai (AIR 1943 Patna 206 Full Bench) holding,