- (1.) The petitioner being the opposite party in the Civil Revisional Application being C.O.4030 of 2008 has filed this application for review of an order passed by this Court on 22nd March, 2012. The ground for review is that while disposing of the application on 22nd March, 2012, a direction was passed upon the Civil Judge (Senior Division), Alipore to dispose of the application filed by the revisionist under Order 7 Rule 11 of the Code of Civil Procedure first, although the plaintiff/applicant has filed an application prior in point of time, namely, on 22nd April, 2010 for amendment of the plaint. The application for rejection of the plaint was filed on 25th January, 2011. It was, thus, submitted that before the said application for rejection of the plaint was filed, the learned Court should have heard and decided the application filed by the plaintiff for amendment of the plaint in April, 2010. It is contended that the learned trial Judge on the basis of the order passed by this Court had taken a view that the learned Court is 'first' required to hear and decide the application under Order 7 Rule 11 of the Code of Civil Procedure before proceeding with the suit and would not be required to hear the application filed under Order 6 Rule 11 of the Code of Civil Procedure prior to the disposal of the said application for rejection of plaint.
(2.) The plaintiff is responsible for the situation that has resulted as a consequence of the order passed by this Court on 22nd March, 2012. The learned Counsel appearing on behalf of the plaintiff/opposite parties/applicants expressed his inability to inform this Court about the status of Title Suit No.994 of 2007. This Court was never informed that a prior application for amendment of plaint was pending before the learned Civil Judge (Senior Division). The Court proceeded on the basis that no prior application for amendment of the plaint is pending and has, accordingly, directed the Civil Judge (Senior Division) to decide an application for rejection of plaint as a decision on the said application in favour of the defendants would put an end to the suit instituted by the plaintiff. It was never the intention of the Court that the Civil Judge (Senior Division) would decide the said application for rejection of plaint disregarding a prior application for amendment of plaint. The direction that the learned Civil Judge (Senior Division) would decide the application under Order 7 Rule 11 of the Code of Civil Procedure first before proceeding with the suits is on the basis that there was no application pending for amendment of the plaint. The Court was never informed by either of the parties that an application for amendment of plaint is pending since April, 2010 in connection with Title Suit No.994 of 2007.
(3.) Mr. Saktinath Mukherjee, the learned Senior Counsel appearing with Mr. S.P. Roy Chowdhury submitted that the amendment proposed in the said application for amendment of plaint would not in any way affect the application filed by the revisionist for rejection of plaint as even if the said amendment is allowed the ground on which the application of amendment has been filed for rejection of the plaint would still hold good and likely to succeed the plaint is liable to be rejected. Mr. Mukherjee has referred to a number of decisions with regard to the power exercised by the Court in allowing the amendment of the plaint which, inter alia, include the decisions reported in (Mst. Johara Khatoon Vs. Mohammad Jane Alam, 1978 AIR(Cal) 133) and (Manthan Brand Band Services Pvt. Ltd. & Anr. vs. C.K.T. Communications Pvt. Ltd., 2005 2 CalHN 648).;