- (1.) This revisional application is directed against an order dated February 16, 2010 passed by the learned Civil Judge (Junior Division), 3rd Court at Howrah in Title Suit No. 74/2008 rejecting the application of the plaintiffs/petitioners for amendment of the plaint on a finding that the amendment if allowed would change the nature and character of the suit property.2. It is submitted by the learned counsel appearing for the plaintiffs/petitioners that the learned Court below failed to appreciate that only on receipt of the written objection from the defendant/opposite party, the petitioners came to know about a decree dated July 3, 1985 and on July 11, 1985 passed by the learned Munsif, 3rd Court at Howrah in connection with T.S.No. 233 of 1982. According to him, the above decree was passed ex parte and the same had no binding effect on the petitioners. Therefore, according to him, the amendment of the present suit could be allowed in order to avoid the multiplicity of the proceedings for challenging the aforesaid ex parte decree. It is also submitted by him that the order was non-speaking and no reason was assigned in support thereof.
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(3.) On the other hand, it is submitted on behalf of the opposite party that the predecessors of the petitioners were the parties to the aforesaid T.S. No. 233/1982. According to him, it dies not lie on the mouth of the petitioners that the aforesaid decree was not binding upon them. It is also submitted by him that the purpose of filing of the application for amendment was to obtain a declaration in the instant eviction suit which could only be obtained in a regular civil suit. It is further submitted by him that the cause of action in a plaint could not be altered in view of the settled principles of law as decided in the matter of Usha Balashaheb Swami v. Kiran Appaso Swami, 2007 5 SCC 602.;