PRASENJIT MANDAL, J - (1.) THIS application is at the instance of the defendant and is directed against the Order dated April 5, 2010 passed by the learned Additional Civil Judge (Junior Division), 3rd Court, Alipore in Title Suit No.439 of 2004 thereby allowing an application for amendment of the plaint.
(2.) THE plaintiff / opposite party herein instituted a suit being Title Suit No.439 of 2004 for declaration, injunction and other reliefs against the defendant / petitioner herein before the learned Civil Judge (Junior Division), 1st Court, Alipore. THE defendant is contesting the said suit denying the allegations made in the plaint. Issues had been framed and thereafter, the suit was fixed for peremptory hearing. At that stage, the plaintiff filed an application for amendment of the plaint and that application was allowed on contests without costs 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 said application for amendment of the plaint was filed at the stage of trial of the suit. As per application for amendment appearing as Annexure 'P- 3' at page no.63, the plaintiff has wanted to incorporate several facts mentioned in the schedule for amendment. On perusal of the schedule for amendment, I find that by the proposed paragraph no.9A, the plaintiff has wanted to incorporate the fact of requisition that had taken place long time back and Gazette Notification was held in the Gazette dated February 17, 1975 and December 8, 1983. So, these are not at all the facts that occurred subsequent to the filing of the suit. Admittedly, the suit having been filed in the year 2004 is governed by the Act No.22 of 2002 effective from July 1, 2002 and as such, so far as amendment of the plaint is concerned, the Court is to look into the amended provision of Order 6 Rule 17 of the C.P.C. Admittedly, the written statement was filed on January 6, 2009, issues were framed on January 28, 2009 and the trial of the suit has commenced and the suit has been fixed for peremptory hearing.
(3.) ON perusal of the plaint, it is apparent that paragraph no.9A as referred to in the schedule of the amendment is in substance, the same fact which has been stated in paragraph no.8 of the plaint, copy of which has been annexed as 'P-1' to the application and certain developments have been made thereon certainly in view of the averments made in the written statement. So, in fact, the proposed paragraph no.9A is nothing but reiteration of paragraph no.8 of the plaint. As regards, the amendment as sought for in paragraph no.s VII & VIII, such averments have been prepared on getting the statements made in paragraph no.13 of the written statement and the facts as stated in paragraph no.s VII & VIII are, in substance, in the nature of denial of the statement made in the written statement. So, such amendment, on getting the copy of the written statement long time back cannot be allowed at the belated stage in the post trial period.;