Decided on September 06,2021

Shrimati Archana Das Appellant
Subrata Dawn Respondents


SUBHASIS DASGUPTA,J. - (1.)This revisional application being C.O. 935 of 2021 is directed against the order dated 23rd February, 2021, passed in Title Suit No. 157 of 2007, by learned Civil Judge (Senior Division) at Sealdah rejecting the amendment petition, filed by the petitioners/plaintiffs, is the subject of challenge in this revisional application.
Mr. Mahato, representing the petitioners/plaintiffs, adverting to Para-4 of instant revisional application submitted that necessity for filing amendment application by the plaintiffs arose after the prayer for the amendment of written statement, filed by defendant no. 2, had been rejected by the Hon'ble High Court in C.O. No. 3113 of 2019.

Mr. Mahato, took me to travel to Para-7 of the amendment application filed by the plaintiffs in T.S. 157 of 2007, wherefrom it appears that plaintiffs derived their knowledge of other properties of their predecessor-in-interest, and the defendant no. 2 also derived his respective knowledge of some other properties, which were established by the defendants from earning of properties and/or family business of plaintiffs and defendant nos. 1 and 2, and entire effort of proposed amendment was to bring those properties in the hotchpot for desired relief of partition.

Mr. Mahato, was very vocal in his submission that in spite of due diligence, the party proposing amendment could not have raised the matter before commencement of the trial, and as such the amendment should be allowed for the entire properties of their predecessor-in-interest to be incorporated in the hotchpot for the proposed partition pending between the parties.

Accordingly, Mr. Mahato submitted that the proviso appended to Order VI Rule 17 C.P.C. will not come in the way for raising objection to the proposed amendment.

(2.)The question thus raised by Mr. Mahato is that learned court below had acted with material irregularity in rejecting the prayer for amendment without truly appreciating the proviso contained in Order VI Rule 17 C.P.C., that the petitioner in spite of due diligence could not have raised the matter before commencement of the trial.
Mr. Prabal Kumar Mukherjee, learned senior advocate representing the opposite parties submitted that the prayer for amendment, proposed by the plaintiffs, had been admittedly made subsequent to the rejection of prayer for amendment application for written statement filed by the 2nd defendant. Mr. Mukherjee further submitted that when a Coordinate Bench of this Court in connection with C.O. No. 3113 of 2019, had affirmed the order of rejection for amendment of written statement filed by defendant no. 2, the same principle should be made applicable over the facts and circumstances of this case, as in any case the plaintiffs could not be allowed to be at a much more advantageous stage, than that of defendant no. 2, whose prayer for amendment of written statement had already been rejected. Incidentally, Mr. Mukherjee submitted that the prayer for transposition of defendant no. 2 to the category of plaintiff had also been refused.

(3.)It was at the stage of argument, defendant no. 2 sought for amendment of written statement seeking to incorporate certain properties for being brought to hotchpot of the present suit without the consent and permission of the other defendants, with whom defendant no. 2 jointly contested the suit.

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