KALYANEE Vs. BHABANI CHARAN BANERJEE

JUDGEMENT

(1.) This revision petition under S.115 of the Code of Civil Procedure is directed against an order dated 22nd May, 1984 passed by the District Judge, Kamrup, Gauhati in Title Appeal No. 11 of 1983 allowing the prayer of the Respondent No. 1 to amend the plaint.

(2.) The plaintiff, who is the Respondent No. 1 before me has filed a title suit No. 93 of 1971 in the court of the Assistant District Judge No. 1 at Gauhati seeking eviction of the defendants from the premises described in schedule 'A' appended to the plaint. The case has been resisted by the defendants on a variety of grounds and it appears that during the last 13 years the parties to the suit have reached this Court as also the Supreme Court in connection with this suit. That is how the suit has not so far been disposed of in the sense that the dispute is still being examined by the learned District Judge in an appeal arising out of the suit. But before the appeal could be disposed of finally an application for amendment of the plaint was filed by the plaintiff before the District Judge who allowed it. The defendants 1 and 3 have come up to this Court seeking revision of the order passed by the District Judge on the amendment application. So the appeal remains where it is and the matter is again brought to this Court.

(3.) From a copy of the plaint (produced before me by the learned counsel for the petitioners) it appears that the plaintiff has claimed to be the absolute owner of the building and the tin-roofed house within the area measuring 56" x 23" later on increased to an area of 56" x 24" of the holding described in Schedule 'A' appended at the foot of the plaint. Similarly in paragraphs 2 and 3 of the plaint the measurement of the area in question has been shown as above as also in the schedule. The plaintiff sought the amendment of the plaint by stating that the area in question in fact measures 56' x 24' and not 56" x 24". He, therefore, sought the necessary amendment to be made in paragraphs 1, 2, 3 and schedule of the plaint. The application, it appears, was vehemently opposed by the defendants before the learned District Judge on the ground that by the amendment sought for the plaintiff wants to introduce a new cause of action, that it will change the character of the suit, that the defendants would be greatly prejudiced in the sense that the plaintiff had originally asked for eviction of the defendants from a part of the premises and not the whole which, according to the defendants, the plaintiff is not entitled to and that at any rate, the application for amendment is highly belated. The learned District Judge did not find any merits in either of these contentions and therefore allowed the application for amendment of the plaint. The defendants being aggrieved have approached this Court in revision and have reiterated the submissions made before the learned District Judge. The learned Counsel for the defendants in support of his submission has placed reliance on a decision of the Supreme Court in Tharayil Sarada v. Govindan (1983) 2 SCC 276, wherein it was pointed out that if the plaint is allowed to be amended, the defendants should be given an opportunity to file an additional written statement. The learned counsel submitted that the Court below while allowing the application for amendment has not given any opportunity to the defendants to file an additional written statement. He also referred me to a recent decision of the Supreme Court in S. Kumar v. Institute of Constitutional and Parliamentary Studies AIR 1984 SC 59. In that case the original reliefs claimed in the suit consisted of a decree of declaration. The plaintiff was an employee of a society. His services were terminated during the pendency of the suit but he did not challenge the order of dismissal by seeking amendment of his plaint to include a relief against the order of dismissal as well. He filed an application for amendment of the plaint before the Supreme Court shortly before concluding his submission there. The application was rejected by the Supreme Court. The learned counsel for the revisionist submitted that as the amendment of the plaint was not sought for by the plaintiff during the last 13 years, he should not have been allowed to amend his plaint in the same way as was done by the Supreme Court in S. Kumar's case (supra).