Prasenjit Mandal, J. - (1.) CHALLENGE is to the order dated July 27, 2010 passed by the learned Civil Judge (Senior Division), 4th Court, Alipore in Title Suit No.77 of 1993 thereby dismissing an application under Order 6 Rule 17 of the C.P.C. The petitioners have filed this revisional application. The opposite party filed a suit being Title Suit No.77 of 1993 for partition, declaration and accounts in respect of the suit properties as described in the schedule of the plaint against the petitioners before the learned Civil Judge (Senior Division), 4th Court, Alipore. The defendants are contesting the said suit by filing a written statement denying the material allegations raised in the plaint and the suit was at the stage of recording evidence.
(2.) AT that time, the defendants 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 am of the view that the learned Trial Judge has rightly rejected the application for amendment of the written statement at the stage of further hearing of the suit. The plaintiff has claimed 1/3rd share in the suit properties as described in the schedule of the plaint. The plaintiff has stated in the schedule of the plaint that there are 45 rooms on the land in suit measuring more or less 17 kathas and out of them, 35 rooms are let out to the tenants. The said land is situated on the C.S. Dag No.1209 and 1210. In order to understand the exact location and the special features of the lands in suit, a Commissioner was appointed and as per report of the Commissioner it has been proved that the Dag No.1210 is a tank and the Dag No.1209 is a bank of the said tank. Now, the contention of Mr. Mullick is that there is a Sitala temple and that temple is situated within the lands in suit and as such, it should be included. Mr. Bhattacharyya appearing for the plaintiff has raised objection vehemently contending that the Sitala temple is of a public nature and it has been existing for more than 50 years and the public in general have been using the said temple to worship all along and so, the defendants have wanted to amend the written statement on the ground that the litigation may be continued for an unending period. It is also submitted by Mr. Bhattacharyya that if the amendment is allowed, naturally, the public in general should be notified under Order 1 Rule 8 of the C.P.C. and then the public in general would come to contest the suit. So, the nature and character of the suit would be changed. Therefore, the learned Trial Judge was justified in rejecting the application for amendment of the written statement.
(3.) THE contention of the learned Advocate for the plaintiff cannot be ignored because from the materials on record I find that the written statement was filed in the year 1996. THE defendants did not raise in whisper as to the existence of said Sitala temple within the lands in suit beforehand. It is true that the mere delay is not a ground to refuse amendment. But it is clear that the application for amendment of the written statement was sought for at the belated stage of further hearing of the suit only for the purpose of prolonging the litigation for an unending period. If the proposed amendment is allowed, the nature and character of the suit will then certainly be changed and the added defendants who are interested in the Sitala temple will file their written statement according to their choice and so, the object of filing suit for partition will be frustrated. The learned Trial Judge has also observed that if it is ultimately found that the Sitala temple is within the suit property and there the same should be incorporated. There is an ample opportunity of passing another preliminary decree in respect of the Sitala temple after passing of the first preliminary decree, and in that case, there cannot be any scope of prejudice to either parties. The learned Trial Judge has rightly observed that the defendants filed the application for amendment of the plaint with an aim to prolong the litigation.;