Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiffs and is directed against the Order No.26 dated December 16, 2010 passed by the learned Civil Judge (Senior Division), 9th Court, Alipore in Title Suit No.2041 of 2008 thereby dismissing an application for amendment of the plaint.
(2.) THE original plaintiffs / predecessors-in-interest of the petitioners herein instituted a suit being Title Suit No.2041 of 2008 against the opposite parties for partition, permanent injunction and other reliefs. THE defendants / opposite parties herein are contesting the said suit by filing a written statement controverting the claim of the plaintiff. THE said suit was at the stage of peremptory hearing and accordingly, the plaintiff no.2 filed his examination-in-chief as P.W.1 by way of an affidavit before the learned Trial Judge. After filing of the said examination-in-chief on behalf of the plaintiffs, the petitioners have contended that there was typographical mistakes in the plaint and as such, the plaint was required to be amended accordingly. THEy filed the application for amendment of the plaint. Upon hearing both the sides, that application for amendment of the plaint was rejected by the impugned order. Being aggrieved, this application has been preferred by the plaintiffs. 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 previously by paragraph no.3 of the plaint, the original plaintiff has admitted sixteen annas ownership of the suit property of Smt. Debi Rani, widow of late Rabindra Nath Gupta. For convenience, the earlier paragraph no.3 and the proposed amendment are quoted below by the following separate paragraphs:- Original Paragraph No.3:- That Smt. Debi Rani, (2nd wife) the widow of Late Rabindra Nath Gupta, who had been the absolute sixteen annas owner of the suit property who had purchased the property out of the income from the estate left by her husband Rabindra Nath Gupta. Proposed Amendment:-
(3.) IN page no.2 paragraph No.3 may be deleted and in its place the following words may be inserted. That Rabindra Nath Gupta since deceased was the absolute sixteen annas owner of the suit property who had purchased the suit property out of his own income in the name of his second wife Smt. Debi Rani Gupta. Thus, from the original paragraph and the proposed paragraph I find that there is no similarity rather contradictory statements and if one is accepted, the other would be automatically deleted. By the original paragraph no.3, the plaintiff has admitted that Smt. Debi Rani was the absolute sixteen annas owner of the suit property and by the proposed amendment, the present plaintiffs have wanted to state that Rabindra Nath Gupta, since deceased, was the absolute sixteen annas owner of the suit property who had purchased the suit property out of his own income in the name of the second wife Smt. Debi Rani Gupta. Thus, I find that by the proposed amendment, the plaintiff has wanted to withdraw the admission made in the earlier plaint. It is not in the form of explanation but in order to claim the suit property by inheritance contending that Rabindra Nath Gupta was the absolute sixteen annas owner of the suit property. Such amendment was sought for at the stage of peremptory hearing. The application for amendment is, therefore, be governed by the proviso to Order 16 Rule 17 of the C.P.C. and in support of the ground of making the application, the plaintiffs have contended that there were some typographical mistakes in the plaint. Save and except, this paragraph no.2 of application for amendment of the plaint appearing as Annexure ?P- 4? at page 34, there is no other averment relating to the fact that in spite of due diligence, the plaintiffs were not able to pray for amendment before the start of the trial. The reasoning as appearing in paragraph no.2 cannot be termed that in spite of due diligence, the plaintiffs could not pray for amendment at the earlier stage. But, it is made with the intention to claim the right of ownership of the suit property by inheritance.;