Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the order no.20 dated May 16, 2008 passed by the learned Civil Judge (Senior Division), Second Court, Barasat in Title Suit No.40 of 2007 thereby rejecting an application under Order 6 Rule 17 of the Code of Civil Procedure.
(2.) THE short fact is that the plaintiff instituted a suit being Title Suit No.40 of 2007 for partition and permanent injunction against the defendants/opposite parties. THE defendants/opposite parties are contesting the suit. In that suit, the plaintiff/petitioner filed an application for amendment of the plaint and upon hearing both the sides on that application, the learned Trial Judge rejected the petition for amendment of the plaint. Being aggrieved, this application has been preferred. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the petitioner filed the said suit for partition and permanent injunction on March 28, 2007. Since then, the suit was pending. Previously, the opposite parties instituted a suit being Title Suit No.609 of 1996 against the petitioner praying for declaration of his right, title and interest over the entire suit property. In that suit, the petitioner did not contest and as a result, the suit was decreed on ex parte on August 9, 2001. The petitioner has contended that he came to know such fact of passing the ex parte decree against him with regard to the suit property only on January 25, 2008 and thereafter on knowing the fact of passing the ex parte decree against him, he filed the application for amendment of the plaint to incorporate such fact only on August 19, 2008, that too even after 7 months from the date of knowing of the fact from the copy of the written statement on January 25, 2008. Such plea of knowledge of the fact is destroyed by the fact that the petitioner filed an application under Order 9 Rule 13 of the C.P.C. along with Section 5 of the Limitation Act on March 14, 2007. I have stated earlier that the suit has been filed by the petitioner on March 28, 2007. So, at the time of filing of the said suit, the petitioner was very much aware of what step he had taken for setting aside the ex parte decree passed against him in Title Suit No.609 of 1996. But curiously enough by suppressing such fact, the petitioner has filed the suit for declaration and partition. He did not state at all that he filed a misc. case for setting aside the ex parte decree dated August 9, 2001. Even if both the matters are taken together, it will reveal that over the selfsame matter, the petitioner had taken two steps; one for setting aside the ex parte decree dated August 9, 2001 and another for amendment of the plaint of the instant suit on august 19, 2008. Thus, I hold that the petitioner has not come to Court with clean hands to seek amendment of the plaint. In fact, he has taken appropriate steps for setting aside the ex parte decree by a filing proper application under Order 9 Rule 13 of the C.P.C. read with Section 5 of the Limitation Act.
(3.) DURING argument, the learned Advocate for the petitioner has referred to the decision of 2010 (1) CLJ (SC) 89 and thus he has submitted that amendment may be allowed if the proposed amendment will not change the character of the suit. This decision, I hold, is not applicable in the instant suit because the relief sought for is for partition and permanent injunction. But by the proposed amendment, he has wanted a declaratory relief to the effect that the decree dated August 9, 2001 is void, illegal, inoperative in law and not binding upon the present plaintiff and so on. So, the character of the suit will be changed. Moreover, he has not come to court with clean hands. So, this decision is not applicable in the instant case. The present application for amendment of the plaint should have been rejected by the learned Trial Judge under the circumstances. He has failed to exercise the jurisdiction vested in him. The impugned order is, therefore, liable to be set aside. The application succeeds. It is allowed. The impugned order is hereby set aside. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.;