SUDHIR CHANDRA DEY Vs. SAHEDA BEGUM

JUDGEMENT

(1.) This is a case where the amendment is sought for by the plaintiff respondent. The plaintiff has made an application for amendment of the plaint but no amendment in the body of the plaint has been sought for. The amendment relates only to amending the prayers of the plaint. In fact the plaintiff is seeking only additional prayers to be introduced as part of the plaint. Under Order 6 Rule 17 of the CPC, the Additional District Judge, Jorhat has allowed the amendment holding that if the prayer for amendment of the plaint is allowed it will not change the nature and character of the suit. By the said order the Additional District Judge has also allowed a sum of Rs 100/- by way of cost against the plaintiff to be paid to the defendant. It appears from the subsequent order dated 16.2.95 that the petitioner has accepted the cost of Rs. 100/- as per the order dated 29.11.94 but subsequently wanted to refund the same. The said refund was not accepted back by the plaintiff and the petition regarding the same was rejected by the District Judge. The main thrust of the argument of Mr. Bhattacharjee appearing for the petitioner challenging the - amendment is based on a Judgement and order passed by this court in F.A. No. 24/80 arising out of title suit No. 51/76 where the [High Court has made certain observation and findings. According to Mr Bhattacharjee in view of the said findings of the High Court no fresh prayers could be introduced in the present suit by the plaintiff inasmuch as the said prayers shall be inconsistent with the findings of the High Court. In the said Judgment the High Court has held that the defendant/Respondent No.2 got possession of the property in pursuance of the deed of gift and became owner thereof. The aforesaid findings according to Mr Bhattacharjee bars the plaintiff in praying for amendment of the prayers of the plaint.

(2.) Counsel appearing for the Respondent submits that the plaintiff has introduced no new facts nor has set up any new case as such he is entitled to the amendment. It has been submitted that the amendment is only relating to the prayer portion of the plaint the body of the plaint remain unaffected. If the defendant has grievance relating to the prayer and if he contends that the prayers are inconsistent: with the findings of this Hon'ble Court and are not supported by the material facts as stated in the plaint the issues can be raised and the court below shall be entitled to reject and hold the issues against the plaintiff. At this stage, however, the court should not prevent the plaintiff to raise new prayers in the plaint which does not effect or change the nature and character of the suit.

(3.) It is further submitted that the plaintiff was not a party in a suit No. 51/76 out of which FA. No. 24/80 arose. As such finding in the said Judgment is no binding on the plaintiff in the present suit and the Hon'ble Court be pleased to dismiss the present revision application.