- (1.) THIS is an order over the hearing of the application under Article 227 of the Constitution of India. This application is at the instance of the defendant no.s 1(a) to 1(c) and is directed against the Order No.237 dated January 24, 2012 passed by the learned Civil Judge (Junior Division), 3rd Court, Serampore in Title Suit No.97 of 1986.
(2.) IN 1969, the plaintiff / opposite party herein instituted a suit for eviction against the petitioners and the proforma opposite party before the learned Civil Judge (Junior Division), 3rd Court, Serampore praying for a decree of khas possession by evicting the defendant from the premises in suit and other consequential reliefs contending, inter alia, that the defendant defaulted in payment of rent since January 1966. The defendant is contesting the said suit and the suit was at the stage of recording evidence. At that time, the defendant filed an application for amendment of the written statement contending, inter alia, that there is a relationship of mortgagor and mortgagee in respect of a security loan of Rs.40,000/ - and as such, amendment is necessary for proper adjudication. That prayer was rejected on contests. Being aggrieved, the defendants / petitioners have come up with this revisional application.
(3.) HAVING heard the learned Advocates for the parties and on perusal of the materials on record, I find that the learned Trial Judge has rightly addressed the issue. As recorded above, the suit was filed in the year 1969 (subsequently, renumbered as Title Suit No.97 of 1986) for eviction on the ground of, inter alia, default. The suit was fixed for peremptory hearing in the year 1991 and at the stage of further peremptory hearing, the application for amendment of the written statement was filed. While disposing of the same, the learned Trial Judge has recorded that the application for amendment of the written statement is hit by the proviso to Order 6 Rule 17 of the C.P.C. The learned Trial Judge has also recorded that if the proposed amendment is allowed, it will cause the change all the nature, character and cause of action of the suit. The proposed amendment is not formal at all. Since, the suit is for eviction and recovery of possession on the ground, inter alia, default, issues have been framed accordingly and the plaintiff has adduced evidence in the suit according to the pleadings of the parties. So, the plaintiff would be prejudiced by the amendment.;