Prasenjit Mandal - (1.) THIS application is at the instance of the plaintiffs and is directed against the Order No.41 dated February 5, 2007 passed by the learned Civil Judge (Junior Division), Dubrajpur, Birbhum in Title Suit No.33 of 2005 thereby rejecting a petition for amendment of the plaint.
(2.) THE plaintiffs / petitioners herein instituted a suit being Title Suit No.33 of 2005 for declaration of title, permanent injunction and other reliefs against the defendants / opposite parties herein in respect of the suit property as described in the schedule of the plaint. THE private defendants are contesting the said suit contending, inter alia, that the suit is not maintainable. THE plaintiffs have no possession over the suit property. THE defendants are in possession of the suit property all along and so, the suit should be dismissed. Issues have been framed. THEreafter, after following the usual procedure, the evidence of the P.W.1 on behalf of the plaintiffs has been completed. At that stage, the application for amendment was filed and that application for amendment of the plaint was rejected by the impugned order. Being aggrieved, this application has been preferred. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the learned Trial Judge has rejected the said application holding that after completion of the evidence of the P.W.1, the proposed amendment was sought for and during cross-examination, the P.W.1 has admitted that the defendants are in possession of the suit property to a certain extent measuring about 2 decimals since his childhood and that is why amendment has been sought for incorporating the contention that the plaintiffs are praying declaration of title and permanent injunction in respect of 46 decimals of land, although, the suit property was described earlier to the extent of 48 decimals of land. THErefore, according to the evidence of the P.W.1, the plaintiffs have sought for amendment of the plaint waiving their claim to a certain extent so that they may protect their right, title, interest and possession in respect of the other portion of the suit property. THE learned Trial Judge rejected the application on the ground that the plaintiffs have stated that the defendant no.3 is in forceful possession of the Eastern part of the suit property by way of construction which is denied by the defendants and so, the amendment sought for is contrary to the case as made out in the case as well as with the deposition as given by the P.W.1. THE plaintiffs have explained in paragraph no.1 of the application for amendment as to why the amendment was sought for waiving their claim to a certain portion of the suit property to keep their suit within the reliefs as sought for. As noted above, the suit was filed for declaration of injunction and if 2 decimals of land are deleted from the portion of the suit property, the suit will remain for declaration of title and permanent injunction and the plaintiffs did not seek remedy for recovery of possession. No doubt, the plaintiffs can abandon a part of their claim to suit their purpose in filing of the suit and so, the plaintiffs have sought for amendment of the plaint according to the situation after completion of the evidence of the P.W.1. Under the circumstances, I find that the plaintiffs have explained why they sought for amendment after completion of the evidence on record and that they could not prefer an application for amendment of the plaint earlier, when no witness was examined on behalf of the plaintiffs. This being the position, the application for amendment, I hold, does not come within mischief of Order 6 Rule 17 of the C.P.C. and in fact, if the proposed amendment is granted, it is the private defendants who may be benefited by the admission of the P.W.1 in his deposition.
(3.) ACCORDINGLY, I am of the view that the proposed amendment is not to fill up the lacuna of the plaint case and not to cause the change of the nature and character of the suit. ACCORDINGLY, I am of the view that the impugned order cannot sustain and it should be set aside. The revisional application succeeds and the same is allowed. The application for amendment of the plaint appearing as Annexure ?C? to the application stands allowed. The learned Trial Judge shall proceed with the suit from that stage. Since, the suit is an old one, the learned Trial Judge is directed to dispose of the said suit within a period of four months from the next date of fixing the examination of the P.W.s. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.;