Prasenjit Mandal, J. - (1.) CHALLENGE is to the order no.27 dated September 27, 2010 passed by the learned Civil Judge (Junior Division), 4th Court, Alipore in Ejectment Suit o.529 of 2008 thereby rejecting an application under Order 6 Rule 17 of the C.P.C. filed by the defendant.
(2.) THE plaintiff / opposite party instituted a suit being Ejectment Suit No.529 of 2008 against one Smt. Gita Srivastava (since deceased), petitioner and the proforma opposite party no.2 for ejectment and damages before the learned Civil Judge (Junior Division), 4th Court, Alipore. THE defendants entered an appearance in the said suit and they are contesting the suit by filing a joint written statement controverting the material allegations raised in the plaint. THE suit was at the stage of further peremptory hearing and the P.W.1 was being examined on behalf of the plaintiff / opposite party herein. At that time, the defendants filed an application for amendment of the written statement 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 application for amendment of the written statement was filed during further crossexamine of the P.W.1, that is, when the trial had already commenced. The suit having been filed in the year 2008, the provisions for amendment under the new Act should be followed. In order to appreciate the proposition of law, I am putting below the provisions of Order 6 Rule 17 of the C.P.C.:- Order 6 Rule 17 of the C.P.C.:- 17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The defendants have stated that they have wanted to amend the written statement when such facts came to light after crossexamination of the P.W.1. But on perusal of the schedule of the proposed amendment, I find that the defendants have wanted to incorporate paragraph 11(A), contending that the predecessor of the present defendants, namely, Tarakeshwar Prasad Srivastava died in the year 1993 leaving three sons and one daughter. The wife at that time was living. Tarakeshwar Prasad came into the suit property with his three sons and one daughter and as such, they are necessary parties to the suit. Thereafter, by the prayer to incorporate paragraph 12(A), the defendants have wanted to incorporate that at the time of death of Tarakeshwar Prasad, the present plaintiff was the owner of the landlord and that there was no correspondence between the heirs of Tarakeshwar Prasad and the landlord in respect of devolution of tenancy of Tarakeshwar Prasad. By the proposed incorporation under paragraph 12(C), the petitioner wanted to include that the entire premises in suit was a thika property and one Ghulam Rahaman was the then Zaminder.
(3.) THERE were several litigations between the landlord and the then Zaminder. Thus, on perusal of the application for amendment of the written statement as appearing at page 28, it appears that the petitioner has claimed that his predecessor in interest was the tenant in respect of the premises in suit. Therefore, the facts as stated in the schedule of the application for amendment were within the knowledge of the petitioner and for that reason, they need not wait up to further cross-examination of the P.W.1. So, the grounds as stated in the application that before crossexamination of P.W.1, the petitioner was not aware of such facts cannot be believed. The petitioner has failed to show that in spite of due diligence, he could not seek for amendment of the written statement at the earlier stage.;