- (1.) Heard the learned Counsel for the parties.
(2.) This revisional application has been directed against the order No. 98 dated 26.8.2013 passed by the learned Civil Judge (Junior Division), 2nd Court, Baruipur in Title Suit No. 78 of 2005 wherein the learned Trial Court rejected the plaintiffs/petitioners' application dated 22.04.2013 for amendment of the plaint under Order VI, Rule 17 of the Civil Procedure Code on contested hearing.
(3.) At the outset the learned Counsel for the plaintiffs/petitioners drew my attention of the schedule of the said petition pointed out that his clients filed this application before the learned Trial Court for inserting certain facts subsequent to commencement of trial and urged that insertion of those facts in the plaint were necessary for the purpose of determining the real question in controversy between the parties. Drawing my attention to the provision of Order VI, Rule 17 of the Code, he submitted that the court may at any stage of the proceedings allow either of the parties to alter or amend their pleadings in such manner and on such terms as may be just and all such amendments shall be made if the court finds it necessary for the purpose of determining the questions in controversy between the parties. He frankly admitted that the application for amendment should not be allowed after the trial has commenced, as it is in the present case, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised such disputed fact before commencement of trial. Further drawing my attention to the schedule of the plaint, he also pointed out that during pendency of the suit, the plaintiffs/petitioners were dispossessed by the defendants forcibly with the help of their men and agents, constructed rooms over some portion of the property over the 'B' schedule property being the part and parcel of the 'A' schedule property and if such amendment claiming recovery of possession is not allowed, no effective decree can be passed in respect of the property appertaining to schedule 'B'.;