BOLO RAM PAUL Vs. DIGENDRA DUTTA

JUDGEMENT

(1.) The defendants No. 1 to 4 in Title Suit No. 5/2007 by the present application filed under Article 227 of the Constitution of India, have challenged the order dated 22.04.08 passed by the learned Civil Judge, Bongaigaon in Misc. (J) Case No. 5/08 arising out of the said suit, allowing the prayer for amendment made by the plaintiff, on the ground that the plaintiff by the proposed amendment of the plaint has not introduced any new case and the amendment proposed if allowed, would not change the nature and character of the suit and rather the proposed amendment is nothing but clarification in order to find out the real controversy between the parties.

(2.) I have heard Mr. B. C. Das, learned Sr. Counsel for the petitioners and Mr. A. D. Choudhury, learned counsel for the respondent No. 1. None appears for the proforma defendant/proforma opposite party No.2.

(3.) Mr. Das, learned Sr. Counsel referring to different dates as well as the impugned order, has submitted that before filing of the application seeking amendment under Order 6, Rule 17 of the CPC, by order dated 14.02.08 issues were settled, documents were filed and even the examination in chief in the form of affidavit of the plaintiff's witness were filed, therefore, according to the learned Sr. Counsel since the trial has commenced, although the Court has power to allow the amendment under Order 6, Rule 17 CPC, it can allow amendment of pleadings only in the event the Court comes to the conclusion that in spite of due diligence, the party could not have prayed for such amendment before commencement of the trial. According to Mr. Das, it is apparent from the application seeking amendment filed by the plaintiff that they even did not make any whisper that in spite of due diligence they could not file the application seeking amendment before commencement of the trial. It has further been submitted by Mr. Das, learned Sr. Counsel, that the Trial Court by the impugned order has allowed the prayer for amendment even without recording any finding that the plaintiff in spite of due diligence could not file the application seeking amendment before commencing of the trial. Mr. Das in support of his contention has placed reliance on the decision of the Apex Court in Ajendraprasadji N. Pandey Vs. Swami Keshavprakeshdasji N. & Ors. reported in (2006) 12 SCC 01.