A.K.Ray, Member - (1.) THE petitioner has come in revision against the order dated 5.1.2009 passed by the District Forum, South 24 Parganas in case No. 18 of 2008 wherein the petition for amendment filed by the Complainant/Revitional Petitioner was dismissed on contest without cost. Being aggrieved, the instant revision petition has been preferred by the Revitional Petitioner.
(2.) THE Revitional Petitioner filed an application on 22.12.2008 praying for an amendment of his complaint petition. It was submitted that at the time of drafting the petition of complaint, the learned Advocate for the Complainant, due to bona fide mistake and oversight, did not incorporate the facts which were required to be inserted by amendment. It was contended that for proper an effective adjudication of the complaint, the said amendment was necessary and it would not change the nature and character of the complaint as the proposed amendments were formal in nature. It was further averred that the O.Ps. would not be prejudiced in any manner if the amendment would be allowed as the proposed amendment would not take away any right which had already been accrued to the O.Ps.
(3.) O .P. No. 1 strongly objected to the proposed amendment on the grounds that the amendment petition had not been filed on affidavit and it was only a verified one and therefore it would be difficult to determine the issue as to whether the contentions of the said amendment petition were genuine or not. Secondly, the amendment petition had been filed at a very belated stage when all the parties had filed their evidence on affidavit. Cross -examination was also done by the parties and brief notes of argument were also filed by the parties when argument of O.P. No. 1 had been partly completed on the date of final hearing. The matter was adjourned on three occasions and during that period the Complainant did not approach the Forum with the instant petition for amendment and ultimately when the matter was fixed for hearing, the complainant for the first time moved one petition for amendment which was an after -thought. The said petition for amendment did not disclose whether the complainant was aware of this fact at the time of filing the complaint petition. This belated attempt to insert some facts by amendment was not tenable and maintainable under the law. The proposed amendment would change the nature and character of the complaint as well as the prayers of the Petitioner would be modified which was contrary to law as per Order 5 Rule 17 of the CPC. No amendment should be allowed unless it is proved that in spite of due diligence the party could not raise the matter before commencement of the trial. The Forum below observed inter alia in its impugned order that admittedly trial of the case had commenced and it was almost at the concluding stage when argument had also been heard in part. The learned Forum also looked into Order 6 Rule 17 of the CPC. They scrutinized the proposed amendment keeping in view the principle of the aforesaid law. It observed that no where the complainant had disclosed that in spite of due diligence he could not raise the matter before commencement of the trial which had already commenced and was at the stage of hearing of the arguments. By the proposed amendment, the complainant wanted to insert some facts at paras 1(a) and 1(b) which were matters of evidence. In the proposed amendment of para 3(c) the complainant had prayed for amendment stating that in view of the circular issued by the Registrar of Co -operative Societies, W.B. prior permission of the DRCS was not required for transfer of the apartment by a member of the Co -operative Society. It was the specific averment of the complainant that the balance sum of Rs. 8 lakh would be paid by him within 90 days from the date of freeing the said flat from mortgage by the OP -1 (Smt. Bratati Chakrabarty), provided necessary approval was obtained from the officer of the Registrar of Co -operative Societies as well as from the OP -2 (Housing Co -operative Society) for transfer of the subject flat. The agreement dated 25.3.1997 also spoke on the same vein at Clause 6 of page -6. Both the parties, therefore, agreed that for such transfer necessary approval should be obtained from the office of the RCS. Rule 142(1) of the West Bengal Co -operative Societies Rules, 1987 also enjoins that in all cases of transfer and letting out of land, house or apartment prior permission of the Registrar was necessary in addition to written consent of the society. In the aforesaid context, the Forum was of the opinion that there was no deficiency in service on the part of OP -2 by referring the matter to the Registrar, Co -operative Societies for his consent. That being so, the proposed amendment in this regard was not at all necessary for deciding the real questions and controversies between the parties.;