JAGNABALKYA CHAKRABORTY Vs. BIDYARTHI CHAKRABORTY

JUDGEMENT

(1.) The short but interesting question which falls for consideration in this writ petition is whether the petitioner can invoke the general power of amendment of a Civil Court under Section 153 of the Code of Civil Procedure, when his application for amendment of his pleadings is barred by the newly added proviso to Order VI, Rule 17?

(2.) The relevant facts generating the present controversy may be narrated at the very outset. The petitioner as the plaintiff instituted T.S. (Partition) No. 11 of 2005 before the Ld. Civil Judge, Senior Division, Court No. 1, West Tripura, Agartala, against the respondents for a declaration of his share in the suit land on the strength of the last Will and Testament of the deceased Suruchi Chakraborty, etc. The suit has been contested by the respondents. When the trial has already commenced and the petitioner was called upon to adduce his evidence, he filed an application under Order VI, Rule 17 to amend his plaint as per item Nos. (I), (II) and (III) in the Schedule to the application. The Ld. Civil Judge by the impugned order allowed the prayer for amendment in respect of item Nos. (I) arid (II), with which we are not currently concerned, and rejected the prayer concerning item (III). The proposed amendment in item No. (III) relates to correction of the date of execution of the Will and Testament from "22.5.1982" to "16.4.1997" appearing in item No. (IV) of relief portions of the plaint. According to the petitioner, the date of execution of the document in question is actually 16.4.1997 and was wrongly mentioned as "20.5.1982" due to typographical mistake.

(3.) Mr. P.R. Barman, the learned counsel for the petitioner, admits that the application for amendment was filed after the commencement of the trial and further that the mistake was also one which could have been detected before the commencement of trial by exercise of due diligence, but he contends that even then, in genuine and appropriate cases, the general power of amendment under Section 153 can always be invoked by courts to prevent miscarriage of justice and, in that view of the matter, the provision of Order VI, Rule 17 as amended in 2002 cannot be said to be exhaustive of all the powers of courts to amend pleadings. He further submits that the object of insertion of the proviso to Order VI, Rule 17 is merely to expedite the hearing of suits and not to scuttle the same as otherwise this will result in gross failure of justice to the party applying for amendment. According to him, the retention of the general power of amendment engrafted in Section 153 even after the aforesaid amendment abundantly shows the intention of the Legislature to clothe the Courts with the power to amend or to allow the party to amend, the pleadings in genuine cases not covered or contemplated by the newly inserted proviso to Order VI, Rule 17. He places strong reliance on the observation of the Apex Court in Goverdhan Dass v. Darshan Singh AIR 1969 SC 372 to buttress his contentions. Coming to the fact of this case, he submits that the proposed amendment has been occasioned by bona fide inadvertence in the course of typing, will not alter the nature of the suit, is really necessary to decide the real controversy involved in the suit and will not prejudice the respondents. He, therefore, contends that the impugned order to the extent it disallowed the amendment in question cannot be sustained in law, and is liable to be set aside.