Soumen Sen, J. - (1.) THIS revisional application is directed against order No. 25 dated 23rd June, 2014 in TA No. 1 of 2013 by the Additional District Judge at Port Blair rejecting an application filed by the petitioners for amendment of the plaint under Order 6 Rule 17. The ground for rejection of the said application appears to be that by the amendment of the plaint the plaintiffs/petitioners want to introduce the fact that they are governed by the law of Mitakshara whereas in the original plaint it is stated that the petitioners/plaintiffs are governed by the Hindu law only. The learned Judge felt that allowing such application would result in changing the nature and character of the suit. It was held that if the appeal is allowed at the appellate stage the same would result in change of the nature and character of the suit. The Appellate Court accordingly declined to allow the said application for amendment of the plaint.
(2.) MS . Anjili Nag, the learned counsel appearing on behalf of the petitioners submits that although in the proposed amendment the plaintiffs have prayed for addition of paragraphs 25(a) to 25(e) in paragraph 25 of the plaint but she is not insisting for addition of Paragraphs 25(a) to 25(d) since the Trial Court has already adjudicated the issues involved in the said proposed amendment and she would confine her prayer for addition of Paragraph 25(e) only by way of amendment. Mr. Haradhan Banerjee, the learned counsel appearing on behalf of the opposite parties submits that if the amendment is allowed at the appellate stage the same would change the nature and character of the suit and would give a fresh cause of action. Mr. Banerjee has referred to Paragraph 14 of the plaint and submits that the plaintiffs in the said Paragraph have categorically stated that as per the law of inheritance the plaintiffs and the defendants are the joint owners of the property left behind by Late Bishnath Tiwari and each of the parties to the instant suit has an undivided respective share over the suit property. Mr. Banerjee has referred to Paragraph 11 and Paragraph 14 of the plaint and submits that from the said paragraphs it would be clear that the plaintiffs have acquired their right to the property by way of inheritance and/or intestate succession. It is submitted that in the event the plaintiffs are allowed to amend the plaint at this stage by adding Paragraph 25(e) to the original plaint the same would completely change the nature and character of the suit. It is submitted that if the proposed amendment is allowed it would raise fresh issues to be tried by evidence and result in fresh trial. The appellate court would not allow an amendment which would change the nature and character of the suit and more so when such proposed amendment would result in fresh trial. In support of the aforesaid contention Mr. Banerjee has relied upon the following decisions: - - "(i) Akhtar Hossain & Ors. V. Susama Rani Sahoo & Ors. reported in : 2001 (3) CHN; (ii) Gulshan Bibi v. Hasmat Ali & Ors. reported in : 2005 (2) CHN; (iii) Arun Chandra Sinha v. Satyendra Chandra Ghose Moulick reported in : 39 CHN 322; (iv) Unreported decision in SA 112 of 2006 (Shri Phanindra Nath Sardar & Ors. V. Budhiswar Poddar) decided on August 30, 2013."
(3.) I have carefully considered the original plaint, the proposed amendment and the examination -in -chief of the plaintiffs filed under Order 18 Rule 4 of the Code of Civil Procedure, 1908 as amended. In order to appreciate the argument of the respective parties it is necessary to refer to some of the paragraphs of the original plaint and the Affidavit -of -Evidence filed by the plaintiffs. The relevant paragraphs of the original plaint are: - - "3. That the plaintiff states that the grant father of the plaintiff late Bishnath Tewari was the sole and absolute owner of the land bearing survey Nos. 40/2 and 39/2 measuring an area of 4 kanals and 2 marlas consisting of a double storied wooden building situated at Goalghar, Port Blair Tehsil, Andaman district within the jurisdiction of this Hon'ble Court. 11. That the plaintiff states that under the provisions of the Hindu Law the plaintiff and the defendants herein became entitled by way of inheritance and/or intestate succession to the property with the wooden building standing thereon. 14. that the plaintiff states that as per the law of inheritance the plaintiff and the defendants are the joint owners of the property left behind by late Bishnath Tiwari and each of the parties to the instant suit has an undivided, respective share over the suit property. Thus the plaintiff has an undivided half portion of 1/5th share and interest in the said property and nobody including the defendant Nos. 1 to 4 can raise any objection or question regarding such half portion of the undivided 1/5th share of the plaintiff in respect of the suit property.";