- (1.) Heard the learned Counsel for the parties at length.
(2.) In the revisional application under Article 227 of the Constitution of India, the propriety of the Order dated 2nd July, 2012 passed by learned Civil Judge (Senior Division), Second Court, Alipore, South 24-Parganas in Title Suit No. 2126 of 2009 has been called in question. In the order impugned the learned Court below while disposing of the application under Order VI, Rule 17 of the Code of Civil Procedure allowed the application for amendment of the plaint treating that the proposed amendment based on a subsequent fact which the plaintiff/opposite party wanted to incorporate by way of amendment of the plaint. While disposing of the said application, learned court below held that the schedule of the proposed amendment was not inconsistent with the averments of the plaint, rather he held that the schedule of the application which refers to a 'draft deed of conveyance' and incorporation of such fact of existence of the said draft deed in the plaint shall not cause prejudice to the defendants/petitioners herein particularly when liberty was given to the petitioners herein to file additional written statement.
(3.) The learned Counsel appearing for the petitioners/defendants, in course of hearing, drew my attention to the proviso of Order VI, Rule 17 of the Code wherein it is provided that no appliction for amendment shall be allowed after the trial has commenced. He further submitted that in the instant case the trial of the suit has already begun since the date of framing of issues by learned trial court and the suit itself is ready for trial. He opined that at this belated stage the court should not allow the amendment of plaint and the order impugned is liable to be set aside. His learned counterpart on the other hand drew my attention to the averments as contained in paragraph 8 of the plaint and pointed out that the existence of the draft deed of conveyance by Arun Bajoria, the predecessor of the defendants/petitioners herein was averred categorically and his client wants to incorporate the fact that 'the deed was subsequently recovered and he wants to produce the same during trial'. Drawing my attention to the proviso of Order VI, Rule 17 of the Code, he pointed out that the court dealing with the application under Order VI, Rule 17 of the Code can allow such application even at this belated stage, if the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. Relying on a decision of the Hon'ble Supreme Court in the case of Rajesh Kumar Aggarwal and Ors. vs. K. K. Modi and Ors., 2006 4 SCC 385, he submitted that the court should allow all amendments that may be necessary for the purpose of determining the real questions in controversy between the parties provided it does not cause injustice or prejudice to the other side.;