- (1.) The order impugned dated 2nd April, 2015 passed by learned 5th Civil Judge (Junior Division), Howrah in Title Suit No.99 of 2010 allowing the application for amendment under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure filed by the plaintiff is under challenge in this revisional application. Mr. Basu, learned counsel appearing for the defendant/petitioner submits that the order impugned is not sustainable in law. He submitted that the trial of the suit have already commenced. Plaintiffs/opposite parties are required to show due diligence to get this amendment allowed in his favour in terms of proviso Rule 17 under Order 6 of C.P.C. Learned counsel submitted that execution of the gift Deed dated 28th January 2010 came to the knowledge of the opposite parties on 11th February 2010. However, the plaintiffs took four years time to move this application for amending the plaint.
(2.) Learned counsel submitted that the period of delay was never explained. He emphasized that plaintiffs failed to show his due diligence, which is the main requirement under the provisio. He in fact made a wrong statement before this Court and got the prayer for amendment allowed in her favour. He submitted that on that score alone the application for amendment ought to have been rejected. Learned counsel submitted that in another suit she has dealt with the deed by filing additional written statement and therefore, the plea taken by the plaintiffs ought not to have been accepted by the learned Court below. The plaintiffs were not entitled to get the application for amendment allowed in his favour. According to him the petitioner incorrectly stated that he has came to know about the deed of gift in 2014. Learned counsel also submitted that the suit was filed in the year 2010 challenging the deed of gift executed in 2007 for one cottah eight chattaks which is not related to the present gift deed of 2010 executed for a different plot and in fact, cannot be said the same plot.
(3.) Learned counsel submitted that opposite parties did not seek amendment in appropriate time and appropriate stage they were not diligent. The plaintiffs/opposite parties did not come with clean hands and as such her prayers ought not to have allowed. Learned counsel submitted that the amendment is to be allowed only when it is necessary to decide the issue involved but in this case the amendment has not necessary to decide the issue. He submitted that the amendment is barred under Article 58 of the Limitation Act. Therefore, learned Court below ought to have considered this aspect of the matter.;