- (1.) THE petitioner is the defendant no.2 in Title Suit No.67 of 2007, pending on the file of the learned Civil Judge (Senior Division), 6th Court at Alipore. THE suit is one for eviction of the defendants on the ground of expiry of lease by efflux of time. THE suit has been valued at Rs. 61,000/-, segregated in the following manner : i) for recovery of khas possession, the suit was valued at Rs. 8400/-; ii) for mesne profit, the suit was valued at Rs. 10,500/-; and iii) for damages the suit was valued at Rs. 42,100/-.
(2.) AN application was filed by the defendant no.2/petitioner under Order VII Rule 10, Civil Procedure Code (hereafter the Code) for returning the plaint to the plaintiff/opposite party no.1 (hereafter the plaintiff) for its presentation to the Court of the lowest grade having jurisdiction to try the said suit. Before the learned trial Judge, contention was raised on behalf of the defendant no.2/petitioner that foundation of the plaintiffs claim on account of damages was lacking in the plaint and that such claim had been included only for avoiding a particular forum. The application was rejected by the learned trial Judge by an order dated May 7, 2008. He held that whether any case for damages had been made out or not would be considered at the time of trial of the suit and not at the stage the application for return of plaint was being considered. Feeling aggrieved thereby, the defendant no.2/petitioner had the occasion to approach this Court by filing an application under Article 227 of the Constitution, being C.O. 1636 of 2008. Upon hearing the parties, a learned Judge of this Court passed an order dated June 23, 2009 disposing of the revisional application. Operative portion of the order reads as follows : In my view, this is a fit case where the learned Trial Court ought to have considered the pleadings of the plaintiff as a whole and also should have passed necessary order for striking out unnecessary pleadings from the plaint in terms of the provision contained in Order 6 Rule 16 of the Civil Procedure Code, so that a party may not be encouraged to file a suit in a Court of his choice by bypassing the provision contained in Section 15 of the Civil Procedure Code by increasing the valuation of the suit. Accordingly, this Court disposes of this revisional application by permitting the plaintiff to make necessary amendment in the said suit within two weeks from date and in the event the plaintiff applies for such amendment, the Court will consider the same on its own merit after giving the defendant an opportunity to file objection against the plaintiffs said application. In the event, however, no such application is filed by the plaintiff before the learned Trial Judge in this regard or in the event the Court finds that the plaintiffs application for amendment of plaint cannot be allowed, then the learned Trial Judge will consider the plaintiffs pleading as made out in the plaint as a whole for taking the ultimate decision for striking out the unnecessary pleadings therefrom as per Order 6 Rule 16 of the Code of Civil Procedure and thereafter to take the ultimate decision regarding the defendants prayer for return of the plaint in the said suit. The plaintiff in terms of the aforesaid order, if it were to be construed strictly, was required to file an application for amendment of plaint by August 7, 2009. However, she filed an application under Order VI Rule 17 of the Code for amendment of the plaint on December 4, 2009 i.e. nearly 4 (four) months beyond the time specified by this Court.
(3.) THE application came up for consideration before the learned trial Judge on April 19, 2010. It was contended on behalf of the defendant no.2/petitioner that since the application for amendment had not been filed within the time frame fixed by this Court, the plaint ought to be returned for presentation before the appropriate court having jurisdiction. It was contended on behalf of the plaintiff that this Court had not in any manner limited her right to file an application for amendment within a particular time frame and, therefore, merely on the ground that the same had not been filed within two weeks would not impinge the trial Courts jurisdiction to decide such application. In support of such contention, reliance was placed on the decisions reported in 2009 (2) CLJ (Cal) 276 and 1996 WBLR (Cal) 27.;