Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the order dated January 5, 2011 5th passed by the learned Civil Jude (Senior Division), Court Alipore in Title Suit No.225 of 2009 thereby rejecting an application under Order 6 Rule 17 of the C.P.C.
(2.) THE short fact is that the plaintiff / petitioner herein instituted a suit being Title Suit No.225 of 2009 against the opposite party praying for a decree for recovery of possession in respect of the premises in suit as described in the schedule of the plaint along with other reliefs before the learned Civil Judge (Senior Division), 5th Court, Alipore. THE defendant / petitioner herein entered appearance and he is contesting the said suit by filing a written statement controverting the material allegations made in the plaint. THE said suit is at the stage of recording evidence. Accordingly, the plaintiff tendered evidence by way of an affidavit under Order 18 Rule 4 of the C.P.C. THE defendant is to cross-examine the P.W. 1. At that stage, the plaintiff filed an application for amendment of the plaint and that application was rejected by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the plaintiff instituted the said suit describing himself as the sole and absolute owner of the property in suit by way of a registered deed of conveyance. According to the pleadings of the parties, issues have been framed. Thereafter, the plaintiff tendered evidence, that is, examination-in-chief by way of an affidavit under Order 18 Rule 4 of the C.P.C. affirming that he is the sole and absolute owner of the premises in suit. Thereafter, he filed an application for amendment of the plaint incorporating that beside himself, his wife, namely, Smt. Padma Verma is also a co-owner of the premises in suit and as such, amendment should be made. It may be recorded that the suit has been filed for recovery of khas possession against licensee. No doubt according to the settled position, trial of the suit begins at the stage of framing of issues. Thereafter, the plaintiff tendered evidence under Order 18 Rule 4 of the C.P.C. by way of an affidavit. So, according to the decision of Vidyabai and ors. v. Padmalatha and anr. reported in 2009(2) CHN 108, the commencement of the trial has already been started. The suit having been filed in the year of 2009, it comes under the Act No.22 of 2002. Therefore, the application for amendment of the plaint shall be governed, according to the proviso to Order 6 Rule 17 of the C.P.C. The plaintiff is, therefore, required to proved that in spite of due diligence, he could not produce the fact of the proposed amendment before the commencement of the trial. Therefore, I am to consider whether the plaintiff has been successful in proving the test of the proviso to Order 6 Rule 17 of the C.P.C. In order to prove the proviso, the plaintiff has stated in paragraph no.2 of the application under Order 6 Rule 17 of the C.P.C. that due to bona fide mistake and inadvertence of the lawyer on behalf of the petitioner, it has been wrongly recorded that the plaintiff alone purchased and became the sole and absolute owner instead of fact that by virtue of the deed of conveyance, the plaintiff and his wife became the owners. It may be recorded herein that the deed of conveyance is not of old one and it was executed and registered on September 4, 2000. So, it is expected that it was within the knowledge of the plaintiff as to the fact of ownership of the premises in suit. Even, when the examination-in-chief was filed by an affidavit to Order 18 Rule 4 of the C.P.C., at that time, the plaintiff has also stated that he is the absolute owner of the suit property. Therefore, at the time of deposition, it is the own assertion of the plaintiff that he is the absolute and sole owner of the suit property. For that statement, he cannot blame upon his lawyer. Under the circumstances, the plea of bona fide mistake and inadvertence on the part of the lawyer of the plaintiff cannot be accepted.
(3.) DURING argument, Mr. Debasish Ray, learned Advocate, appearing for the petitioner has referred to the decision of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon reported in AIR 1969 SC 1207 and thus, he submits that the Courts always give leave to amend the pleading of a party, unless it is satisfied that the party acting mala fide or that by his blunder, he has caused injury to the opponent which may not be compensated for by an order of cost. This decision relates to the old provision of the C.P.C. Therefore, it will not govern the present field. On the other hand, Mr. Sanjit Dutta, learned Advocate appearing for the opposite party has referred to the decision of 2005(6) SCC 344 and submits that the plaintiff was required to prove that in spite of due diligence, such amendment could not be sought for earlier. The learned Trial Judge has discussed this position in details. I think this decision will be appropriate in the instant situation. Similarly, according to the decision of Vidyabai and ors. v. Padmalatha and anr. reported in 2009(2) CHN 108 particularly the paragraph nos.7, 8 and 11 before allowing an application, the court has to come to a finding that in spite of due diligence, the petitioner could not have raised the matter before the commencement of trial. This is also applicable in the instant case.;