- (1.) FOR the petitioners.
(2.) NONE appears for the opposite parties in spite of service of notice. Affidavit-ofservice filed in Court today be kept with the record. The petitioners have challenged the impugned order dated 16.7.2010 passed by the Learned Civil Judge (Junior Division) 7th Court at Howrah in Title Suit No.113 of 2008. The petitioners have filed a suit, inter alia, praying for declaration of title and permanent injunction against the opposite parties. During the pendency of the suit, the opposite parties entered appearance and filed their written statement. Thereafter, by order dated 12.11.2009 issues were framed and date was fixed for documents inspection and peremptory hearing. However, it appears that no date has been fixed in case for filing of affidavit-evidence under Order 18, Rule 4 of the Code of Civil Procedure. At this juncture, the petitioners filed an application of amendment of the plaint under Order 6, Rule 17 of the Code of Civil Procedure read with Section 151 thereof. The contentions of the petitioners in the said amendment application were to correct a typographical error and also to make certain additions in the body of the plaint with regard to certain facts relating to the cause of action already pleaded in the plaint. The said application was objected to the opposite parties. Upon hearing the parties, the learned trial Judge by the impugned order rejected such prayer for amendment on the ground that permitting the same would change the nature and character of the suit. Mr. Bhattacharya, learned counsel for the petitioners strongly argued that mere elaboration of facts relating to a cause of action already pleaded in the plaint does not change the nature and character of the suit. In support of his contention Mr. Bhattacharya has relied on the decision reported in 2006 (6) S.C.C. 498.
(3.) WITH regard to the issue as to the stage of proceeding at which the amendment has been sought for, Mr. Bhattacharya submitted that the trial in the instant case has not commenced, therefore, the proviso to Order VI, Rule 17 of the Code of Civil Procedure does not get attracted. He submitted that it is only upon the filing of affidavit-evidence that the trial in a civil case commences for the purpose of the aforesaid proviso. In support of his contention he relies the following decisions (i) 2006(6) S.C.C. 498; (ii) 2009(2) S.C.C. 409, (iii) 2011(12) S.C.C. 268 and (iv) AIR 2007 Del 48. The first issue which falls for consideration is whether the prayer for amendment of the plaint for correcting a typographical error and for providing a more elaborate description of the plaintiff claim would amount to changing the nature and character of the suit.;