- (1.) This revisional application under Article 227 of the Constitution of India is directed against the order impugned No. 114 dated 27.11.2003 passed by Sri Milan Chatterjee the learned Judge, 9th Bench, City Civil Court, Calcutta in connection with Title Suit No. 1342 of the 1984 allowing an amendment of the plaint.
(2.) The application is contested by the O.P. by filing an affidavit-in- opposition.
(3.) Mr. Sabyasachi Sen, the learned Counsel appearing with Mr. Pratik Prakash Banerjee, the learned Counsel for the defendant/petitioner has drawn my attention to the amendment petition itself. It is submitted that the amendment petition was filed in the month of October, 2001 whereas on the own admission of the plaintiff the cause of action arose in the month of November, 1984. The order impugned passed by the learned trial Judge allowing the amendment application had changed the nature and character of the suit. It is also pointed out that even after the amendment the plaint remains inconsistent. It is pointed out that in the plaint it is claimed that the truck in question is still in possession of the plaintiff, but nowhere in the amended plaint there is anything that the truck is untraceable. It is also pointed out that although after the amendment application was allowed the learned trial Judge directed to deposit the deficit Court fees on a sum of Rs. 3,00,000/-, the valuation shown in the original plaint itself was not altered. It is further argued that although the amendment application was allowed the suit appears to become infructuous in the absence of any prayer for consequential relief of return of truck in view of the provisions of Section 34 of the Specific Relief Act. My attention was drawn to the prayers made in the original plaint. My attention was also drawn to the amended plaint and it is argued that in prayer c(i) which was incorporated after the amendment in the first sentence an alternative decree for Rs. 3,00,000/- being the value of the truck and interest thereon was prayed but in the next sentence in that prayer a sum of Rs. 3,00,000/- was prayed beside interest. This is apparently contradictory, Mr. Sen argues. My attention was also drawn to paragraph 6 of the affidavit-in-opposition wherein it is stated that by the proposed amendment the plaintiff is trying to make out a different case and to import a new cause of action in the instant case which he is not otherwise entitled to claim in law. It is also stated there that the claim of the plaintiff for a sum of Rs. 3,00,000/- is barred by limitation. Several case laws have been cited by the learned Advocates for both the parties.;