Prasenjit Mandal, J. - (1.) CHALLENGE is to the order dated April 9, 2009 passed by the learned Civil Judge (Junior Division), 1st Court, Alipore in Title Suit No.776 of 2008 thereby allowing an application for amendment of the plaint.
(2.) THE short fact necessary for the purpose of this case is that the plaintiff / opposite party no.1 herein instituted a suit being Title Suit No.776 of 2008 before the learned Civil Judge (Junior Division), 1st Court, Alipore against the petitioner. THE petitioner is contesting the said suit. During the pendency of the suit, the plaintiff filed an application for amendment of the plaint and that application was allowed by the impugned order. Being aggrieved, this application has been preferred. Upon hearing both the sides and on consideration of the materials on record I find that the proposed amendment is nothing but to subsequent events that happened after filing of the suit. The plaintiff became the absolute owner of the suit property which is a garage by virtue of a deed of purchase in the year of 2006. The defendant kept his car in the said garage, although, he has no right to keep his car in the said garage. Under the circumstances, the plaintiff has filed the suit for declaration, damages and other reliefs. When the plaintiff filed the suit, he filed an application for temporary injunction restraining the defendant from keeping his car in the said garage. That prayer was granted. At that time, the defendant began to park his car on the common passage which should be kept free for ingress and ingress of the residents and also for movement of the vehicles. Under the circumstances, the plaintiff filed an application for amendment of the plaint praying for further relief, restraining the defendants from using that common passage as car parking area and other reliefs. That application for amendment was allowed by the impugned order. Thus, I find that the proposed amendment is nothing but to incorporate the subsequent events which happened post filing the suit. If the prayer is allowed the relief sought for in the earlier suit remains unaltered. The character of the suit is not also changed.
(3.) DURING the argument, Mr. Kaushik Chanda appearing on behalf of the petitioner has submitted that while considering the amendment of the pleadings, the Court though should take a liberal view but at the time of granting amendment of the written statement, contrary stands may be allowed. But with regard to amendment of the plaint, the Court should be strict. In support of his contention, he refers to the decision of Usha Balashaheb Swami and ors. v. Kiran Appaso Swami and ors. reported in AIR 2007 SC 1663 particularly paragraph no.18. With due respect to Mr. Kaushik Chanda, I am of the view that this is a general proposition with regard to amendment of the pleadings. But in the present situation, the amendment relates to a matter that happened subsequent to the filing of the suit. So, when such a situation happened, it might be included to settle the dispute between the parties once for all. Therefore, I am of the view that this decision will not be applicable in the instant situation. Similarly, Mr. Chanda, learned Advocate for the petitioner has also referred to the decision of Revajeetu Builders and Developers v. Narayanaswamy and sons and ors. reported in (2009)10 SCC 84 and thus, he submits that the Court has quite discretion in dealing with the amendment of the pleadings. But the Court?s power must be exercised judicially and with due care. He has submitted that while dealing with the application for amendments, the Court is to consider whether the amendment is necessary for determination of the real question in controversy or not. This basic test governs the Court?s discretion to grant or refuse the prayer for amendment. He has also pointed out by referring the said decision that the Court is to consider the prejudice which is to be likely caused to the other side, if the discretionary power is exercised. This is also, I am of the view, over the general proposition relating to amendment of the plaint. I have stated that the proposed amendment has been allowed by the learned Trial Judge in order to solve the dispute between the parties once for all. So, subsequent events should be taken care of to solve the dispute between the parties. The question of suffering prejudice by the defendant does not arise at all in the instant case. So, this decision will not be of helpful to the petitioner in disposing of this revisional application. On the other hand, Mr. Srikanta Datta appearing on behalf of the opposite party has referred to the decision of M/s. M. Laxmi and Co. v. Dr. Anant R. Deshpande and anr. reported in AIR 1972 SC 171 particularly paragraph no.27 which lays down that the Court can take notice of the subsequent events where the original relief has become inappropriate by subsequent events.;