Calcutta High Court (Appellete Side)
Smt. Bechi Rani Saha vs Sri Subodh Adhikari And Ors on 10 January, 2025
1
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Biswaroop Chowdhury
C.O. 38 of 2023
Smt. Bechi Rani Saha
VERSUS
Sri Subodh Adhikari and ors.
For the petitioner: Mr. Pinaki Ranjan Mitra, Adv.
Mr. Sounak Bhattacharya, Adv.
For the opposite parties: Mr. Souvik Das, Adv.
Mr. Saunak Mondal, Adv.
Mr. Rudranil Das, Adv.
Last Heard on: December 10, 2024
Judgment on: January 10, 2025
Biswaroop Chowdhury,J:
The petitioner before this Court is a defendant in a suit for declaration
and permanent injunction and is aggrieved by the Order dated 08.07.2022
passed by Learned Additional District Judge 1st Court Howrah in Title Appeal
No- 265 of 2018. Petitioner being aggrieved by the Order passed by the Learned
Appellate Court has come up with the instant application under Article 227 of
the Constitution of India.
2
The case of the petitioner/defendant in an application under order 6
Rule 17 of the Code of Civil Procedure before the Learned Appellate Court may
be summed up thus:
1. The plaintiffs originally filed Title Suit No. 16298, of 2014 in the
Fourth Court of Ld. Civil Judge (Junior Division) Howrah illegally, and
claiming their alleged common right of passage over "C" schedule suit
whereas the appellant/defendant contested the said suit by filing
written statement.
2. That after contested hearing the Learned Trial Court by its Judgment
dated 27-09-2018 was pleased to grant a decree in favour of the
plaintiffs. The defendant being aggrieved by the said decree preferred
an appeal.
3. During the pendency of the appeal the appellant/defendant engaged
new set of Learned Advocate on her behalf. The appellant/defendant
is the absolute owner and occupier to the extent of altogether 6.3
decimals rather the entire property comprised in R.S. and L.R. Dag
No. 4947 of the said Mouza Uttar Jhapardah P.S. Domjur District -
Howrah by purchase by three different registered Deed of sale being
Deed No. 1962, for the year 1992. Deed No. 362 for the year 2007,
and Deed No. 1362 for the year 2008, for valuable consideration from
it's the then owner/occupier thereof and thus since said purchase the
appellant/defendant is residing in her said purchased property
including the alleged "C" schedule suit property being part and parcel
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of her said residential house property to the full knowledge and
exclusion of all concerned including the respondents/plaintiffs.
Amongst the said three Deeds, by Deed No-362 for the year 2007, and
Deed No. 1362 for the year 2008, the appellant/defendant has
purchased besides the suit dag No-4947 other different quantum of
property comprised in R.S. and LR Dag No-4948 of the said Mouza
Uttar Jhapardah and since purchase the appellant/defendant is also
enjoying the same to the full knowledge of all concerned, whereas the
appellant/defendant inspite of having handed over all relevant papers
and documents to her Learned Advocate on record in the trial Court
the said Learned Advocate inadvertently only mentioned 3.25
decimals of landed property comprised in R.S. Dag No- 4947
appertaining to R.S. Khaitan No-2537 of Mouza Uttar Jhapardah in
the written statement whereas the appellant/defendant when asked
her Learned Advocate on record before the Trial Court about the
matter contained in her said written statement he assured the
appellant/defendant that entire property of the defendant/petitioner
has been mentioned in written statement and the
petitioner/defendant being an ittiterate person having trusted her
Learned Advocate on record proceeded accordingly in the Trial Court.
However after consultation with her present Learned Advocate it is for
the first time the petitioner/defendant come to know that the proper
ownership and manner of possession of her said purchase of total
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property measuring about 6.3 decimals comprised in suit RS Dag No.
4947 has not been stated in the written statement despite handing
over all document to Learned Advocate appearing in Trial Court, when
she implicitly relied and trusted upon.
4. The petitioner/defendant is the absolute owner and occupier in
respect of well defined bastu property comprised in R.S. and LR. Dag
No- 4947, of the said Mouza Uttar Jharpardah measuring about 6.3
decimals rather the entire property in the said Dag by virtue of the
said three registered Deeds of sale being Deed No. 1962 for the year
1992. Deed No. 362 for the year 2007, and Deed No. 1362 for the year
2008 respectively and thus she is well seized and possessed of her
said property by raising construction thereupon to the full knowledge
and exclusion of all concerned including the plaintiffs but due to
mistake of the Learned Advocate appearing in trial Court such fact
was not incorporated in the written statement.
The plaintiffs/respondents/opposite parties contested the application by
filing written objection.
By Order dated 08-07-2022 Learned Appellate Court was pleased to
reject the prayer for amendment made by the petitioner by observing and
directing as follows:
‘Today is fixed for hearing of application under Order 6, Rule 17, read
with Section 151 C.P.C.
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Parties have filed hazira. Parties are present through their respective Ld.
Advocates.
Perused, heard and considered.
By filing the instant petition, the appellant-defendant has prayed for
amendment of written statement referring to two sale deeds, being Nos.
362/2007 and 1362/2008 and also the acts he has performed over the
properties referred to therein and also that the said property covered by the
newly referred sale deeds, was being used as courtyard-cum-open space. The
same has been denied by filing W.O dt. 04.03.2022 referring to the Paragraph
Nos. 3. 4 and 5 of the proposed amendment application, it has been alleged
that the alleged amendment is a mala fide one and will destroy (i) the valuable
rights accrued by the plaintiff-respondent by dint of admission in the
pleadings, (ii) admissions and evidence during trial, (iii) cause de novo trial of
the suit and also nullify the Judgment and observations arrived at by the Ld.
Court below on the basis of the materials in record before her. It has also been
alleged that what the defendant has denied on dock before the Ld. Court below
to consider and thereby drawing adverse presumption against him, can in no
way be allowed to produce by this forum.
It appears from the W.S. filed by the present appellant-defendant on
22.04.2015 from Paragraph No.8 that the statement in Paragraph 2 of the
plaint has been admitted and also claimed that the defendant to be absolute
owner of R.S. Plot No. 4947, Khatian No. 2537 by virtue of a registered sale
6deed dt. 15.09.1992 and also denied the user of C schedule by the plaintiffs,
but alleged of an alternative passage at the northern side common passage of
their land. In Paragraph No. 16 of the written statement which has been
proposed for amendment it has been categorically stated that a piece and
parcel of 3.25 decimal of land from R.S. plot no. 4947 was purchased by a deed
dt. 15.05.1992 from one Panchanan Ram. It has also been stated that
defendant has after such purchase, constructed residential house and has
been using the same with her family members and the same being her
exclusive property which forms the part of C schedule also, the plaintiffs have
no right, title, interest or possession thereon. While adducing evidence by filing
examination-in-chief on 03.03.2018, the defendant as D.W.1 has categorically
stated “I will not file my purchase deed, I have my purchase deed at my
residence. At the time of drafting my W.S., I had shown the purchase deed to
my L.D. Advocate, I do not know the total area of the suit plot. I have
purchased 3.25 decimal of land in R.S. plot No. 4947 and not the entire area.”
Thus the matter of error or wrong instruction by L.d. Senior Counsel to the
defendant cannot be believed. It is rather evidently clear that the defendant has
on dock before Ld. Trial Court, has boldly denied to file the document i.e.
purchase deed and also that she has purchased an area of 3.25 decimal and
also denied that she has purchased the entire area. Thus the proposed
amendment appears to be the clear withdrawal from the admission on dock
and also her denial to file any deed.
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The proposed amendment, if allowed, will not only invite a de novo trial
but also frustrate the Judgment which was fond to be based on the evidence,
documentary and oral, before ld. Trial Court. The documents proposed to bring
in record by the intended amendment, if allowed, at this stage, the clear
admission of the area and purchase deed shall be destroyed and by the same
the valuable right accrued by the respondent, by admission and pleadings shall
also be destroyed. Thus the proposed amendment appears not only to be
against the principle laid down under Order 6, Rule 17, C.P.C. but also the
principles laid down by a catena of Judgment by Hon’ble Apex Court as well as
High Court. Thus the proposed amendment appears to be devoid of merit and
also against the public policy.
Hence , it is,
ORDERED
That the petition is and the same be rejected with cost of Rs. 2,000/-
To 02.09.2022 for hearing.’
The petitioner being aggrieved by the Order dated 08-07-2022 passed by
Learned Appellate Court has come up with this application under Article 227 of
the Constitution of India.
It is the contention of the petitioner that the Learned Appellate Court
acted illegally and with material irregularity in rejecting the application for
amendment made by the petitioner. It is further contended by the petitioner
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that the petitioner has deed in her custody which could not be brought on
evidence in absence of pleading which will neither destroy the admission of the
area of purchase deed nor any valuable record right of plaintiffs will be
destroyed in as much as plaintiffs have claimed right of passage over the land
of defendant and the learned judge acted with material irregularity in rejecting
the application of the petitioner. It is also contended that the power to grant
amendment of pleading is intended to serve the ends of justice and is not
governed by narrow or technical limitation and the Learned Judge acted
illegally in rejecting the application of the petitioner.
Heard Learned Advocate for the petitioner and Learned Advocate for the
opposite parties perused the petition filed and materials on record.
Learned Advocate for the petitioner submits that the Learned Trial Court
erred in refusing the prayer for amendment when the petitioner is an illiterate
lady and the necessary facts were not incorporated in the pleadings due to
laches of her learned advocate appearing in Trial Court. Learned Advocate
further submits that amendment is necessary for deciding the material in
issue. Learned Advocate also submits that the petitioner will suffer irreparable
loss and injury if the amendments are not allowed.
Learned advocate for the opposite parties submits that the learned
appellate court rightly rejected the prayer for amendment. Learned Advocate
draws attention to the deposition of the petitioner as D.W.1 before Trial Court
and submits that the petitioner has stated that she purchased 3.25 decimal of
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plot no – 4947, and has no grievance against her purchase deed and she also
refused to file the purchase deed. Learned Advocate further submits that the
petitioner was not able to satisfy the Learned Appellate Court as to why such
prayer was not made before the Trial Court. Learned Advocate also submits
that if at this stage the petitioner is allowed to amend the pleadings it will
cause serious prejudice to the opposite parties.
The following decisions were relied upon by Learned Advocates for the
opposite parties.
Ram Niranjan Kajaria and Ors Vs Sheo Prakash Kajaria [Reported in
(2015) 10 SCC-P-203]
The following unreported decision is relied upon by Learned Advocate for
the petitioner
Smt Binapani Maity and Anr Vs Debashis Payra
Before proceeding to deal with the issue it is necessary to consider the
provision with regard to amendment as provided in Order VI Rule 17 of the
Code of Civil Procedure
Order VI Rule 17 of the Code of Civil Procedure provides as follows:-
17. Amendment of pleadings- The court may at any stage of the
proceedings allow either party to alter or amend his pleadings in such manner
10and on such terms as may be just, and all such amendments shall be made as
may be necessary for the purpose of determining the real question in
controversy between the parties.
Provided that no application for amendment shall be allowed after the
trial has commenced unless 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.
In the instant case the petitioner has sought to amend the pleadings
before the appellate court. Thus the petitioner has duty to satisfy the Appellate
Court as to why prayer for amendment prior to commencement of trial was not
made.
The petitioner in her petition for amendment has stated that although
she has furnished necessary documents and instruction to her lawyer
appearing in Trial Court but the same was not incorporated due to
inadvertence. Now the question is whether such plea in sufficient to allow the
prayer for amendment in the interest of justice
In the case of Ram Niranjan Kajaria and others (supra) the Hon’ble Supreme
court observed as follows:
23 ‘Delay in itself may not be crucial on an application for amendment in a
written statement, be it for introduction of a new fact or for explanation or
clarification of an admission or for taking an alternate position. It is seen that
the issues have been framed in the case before us, only in 2009. The nature
11and character of the amendment and the other circumstances as in the instant
case which we have referred to above, are relevant while considering the delay
and its consequence on the application for amendment. But a party cannot be
permitted to wholly withdraw the admission in the pleadings, as held by this
Court in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and othersAIR
– 1974 S.C. 471 : (1974) 1 SCC-242 (1974) 2 SCR – 544. To quote paragraph –
27.
“27. From a conspectus of the cases cited at the bar, the principle that emerges
is, that if at the time of the passing of the decree, there was some material
before the Court, on the basis of which, the Court could be prima facie
satisfied, about the existence of a statutory ground for eviction, it will be
presumed that the Court was so satisfied and the decree for eviction though
apparently passed on the basis of a compromise, would be valid. Such material
may take the shape either of evidence recorded or produced in the case, or, it
may partly or wholly be in the shape of an express or implied admission made
in the compromise agreement, itself. Admissions, if true and clear, are by far
the best proof of the facts admitted. Admissions in pleadings or judicial
admissions, admissible under Section 58 of the Evidence Act, made by the
parties or their agents at or before the hearing of the case, stand on a higher
footing than evidentiary admissions. The former class of admissions are fully
binding on the party that makes them and constitute a waiver of proof. They by
themselves can be made the foundation of the rights of the parties. On the
other hand, evidentiary admissions which are receivable at the trial as
evidence, are by themselves, not conclusive. They can be shown to be wrong.”
The Hon’ble court further observed as follows:
21. On amendments generally, in the decision reported in Revajeetu Builders
and Developers v. Narayanaswamy and Sons and others(2009) 13JT-366,
(2009) 10 SCC 84 : (2009)15 SCR.103(2009)10 UJ-4850 after referring
12to Gautam Sarup (supra), the principles on amendment have been summarized
at Paragraph-63. It has been held as follows:
“63. On critically analyzing both the English and Indian cases, some basic
principles emerge which ought to be taken into consideration while allowing or
rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective
adjudication of the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which
cannot be compensated adequately in terms of money; (4) refusing amendment
would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally
changes the nature and character of the case; and(6) as a general rule, the court should decline amendments if a fresh suit on
the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while
dealing with application filed under Order 6 Rule 17. These are only illustrative
and not exhaustive.”
In the case of Mahila Ramkali Devi and Ors Vs Nandram reported in (2015)
13 SCC P-132 the Hon’ble Supreme Court observed as follows:
20. It is well settled that rules of procedure are intended to be a handmaid to
the administration of justice. A party cannot be refused just relief merely
because of some mistake, negligence, inadvertence or even infraction of rules of
procedure. The Court always gives relief to amend the pleading of the party,
unless it is satisfied that the party applying was acting malafide or that by his
13blunder he had caused injury to his opponent which cannot be compensated
for by an order of cost.
21. In our view, since the appellant sought amendment in paragraph 3 of the
original plaint, the High Court ought not to have rejected the application.
22. In the case of Jai Jai Ram Manohar Lal vs. National Building Material
Supply, Gurgaon, AIR 1969 SC 1267, this Court held that the power to grant
amendment to pleadings is intended to serve the needs of justice and is not
governed by any such narrow or technical limitations.
23. In Pandit Ishwardas vs. State of Madhya Pradesh and Ors., reported in
1979 4 SCC-{-163 the Hon’ble Supreme Court observed as follows:-
4. “We are unable to see any substance in any of the submissions. The learned
counsel appeared to argue on the assumption that a new plea could not be
permitted at the appellate stage unless all the material necessary to decide the
plea was already before the Court. There is no basis for this assumption.
5. There is no impediment or bar against an appellate Court permitting
amendment of the pleadings so as to enable a party to raise a new plea. All that
is necessary is that the Appellate Court should observe the well-known
principles subject to which amendments of pleadings are usually granted.
Naturally, one of the circumstances which will be taken into consideration
before an amendment is granted is the delay in making the application seeking
such amendment and, if made at the Appellate stage the reason why it was not
sought in the trial court. If the necessary material on which the plea arising
from the amendment may be decided is already there, the amendment may be
more readily granted than otherwise. But, there is no prohibition against an
Appellate Court permitting an amendment at the appellate stage merely
because the necessary material is not already before the Court.”
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In the case of Baldev Singh and others VS Manahar Singh and Another
reported in (2006) 6 SCC. P-498 the Hon’ble Supreme Court observed as
follows”
‘8. It is well settled by various decisions of this Court as well as the High
Courts in India that Courts should be extremely liberal in granting, the prayer
for amendment of pleadings unless serious injustice or irreparable loss is
caused to the other side. In this connection, reference can be made to a
decision of the Privy Council in Ma Slue Mya V Maung MO Hnaung in which
the Privy Council observed:
All rules of Court are nothing but provisions intended to secure the
proper administration of justice and it is therefore essential that they should be
made to serve and be sub-ordinate to that purpose so that full powers of
amendment must be enjoyed and should always be liberally excused, but
nonetheless no power has yet been given to enable one distinct cause of action
to be substituted for another, nor to change by means of amendment, the
subject matter of the suit.”
The Hon’ble Allahabad High Court in the case of Imtiar Ahmad V ADJ
and Ors reported in 2006(2) AWC 1190 observed as follows:
8. I have heard learned Counsel for the petitioner and Sri Srikant, learned
Counsel for the respondents and have perused the record.
Order VI, Rule 17 provides amendment of the pleadings. By Amendment of
2002, a proviso has been added that amendments should generally be allowed
at this stage of pre-trial of the suit. But subsequent thereto, the Court must be
satisfied as to why the pleadings could not be brought in, unless it was based
on subsequent developments.
The issue involved herein is being considered by the Courts every day.
Amendment in the pleadings may generally be allowed and the amendment
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may also be allowed at the belated stage. However, it should not cause injustice
or prejudice to the other side. The amendment sought should be necessary for
the purpose of determining the real question in controversy between the
parties. Application for amendment may be rejected if the other party cannot be
placed in the same position as if the pleadings had been originally correct, but
the amendment would cause him injury which could not be compensated in
terms of cost or change the nature of the suit itself as it cannot be permitted to
create an entirely new case by amendment. A right accrued in favour of a party
by lapse of time cannot be permitted to be taken away by amendment.
Amendment can also be allowed at appellate stage. Introduction of an entirely
new case, displacing even admission by a party is not permissible. (Vide
Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. ; Nanduri
Yogananda Laxminarsimhachari and Ors. v. Sri Agasthe Swarswamivaru
; Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co. ; Ishwardas
v. State of M.P. AIR 1979 SC 551 and Mulk Raj Batra v. District Judge,
Dehradun ).
10. A Constitution Bench of the Hon’ble Supreme Court in Municipal
Corporation of Greater Bombay v. Lala Pancham and Ors. , observed that even
the Court itself can suggest the amendment to the parties for the reason that
main purpose of the Court is to do justice, and therefore, ,it may invite the
attention of the parties to the defects in the pleadings, so that same can be
remedied and the real issue between the parties may be tried. However, it
should not give rise to entirely a new case.
11. In Jagdish Singh v. Natthu Singh , the Hon’ble Supreme Court held that
the Court may allow to certain extent even the conversion of the nature of the
suit, provided it does not give rise to entirely a new cause of action. An
amendment sought in a plaint filed for specific performance may be allowed to
be done without abandoning the said relief but amendment seeking for
damages for breach of contract may be permitted.
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26. In Nagappa v. Gurudayal Singh and Ors. , the Hon’ble Supreme Court held
that amendment can be allowed even at an appellate stage in a case where law
of limitation is not involved and the facts and circumstances of the particular
case so demand, in order to do justice with the parties. The case involved
therein had been under the provisions of Sections 166, 168 and 169 of the
Motor Vehicles Act, 1988 and as the Act does not provide for any limitation for
filing the claim petition, the amendment at appellate stage was allowed.
Upon considering the provision of Order VI Rule 17 of the Code of Civil
Procedure and different Judicial Pronouncements it will appear that Courts
should be liberal in allowing amendments unless it changes the nature of the
suit or causes serious prejudice to the opposite parties. In exceptional cases
prayer for amendment can even be allowed after commencement of trial or at
the appellate stage.
Upon perusal of the Order dated 08.07.2022 passed by Learned
Appellate Court it will appear that the Learned Court was pleased to observe
that clear admission on the dock is being withdrawn. Learned Court relied on
the statement of the petitioner as D.W.1. where the petitioner state that a piece
and parcel of 3.25 decimal of land from R.S. plot No. 4947 was purchased by a
deed dated 15.05.1992 from one Panchanan Ram.
In this regard it is to be remembered that the defendant/petitioner in
reply to the statement of the plaintiff in the plaint that defendant is owner of
3.25 Decimal Bastu Land (recorded as Danga) together with structure standing
thereon situated at part of R.S Dag No (4947) under R.S. Khaitan No. 2537
admitted the same in her written statement that she is the absolute owner and
occupier of bastu property situated at R.S. Dag No-4947 under Khatian No-
2537 of Mouza-Uttar Jhapardah by registered Deed of sale dated 15-05-1992.
It is an admission to the contention of the plaintiff in the plaint. In the written
statement the defendant has mentioned that she is the absolute owner of bastu
property situated at R.S. Dag No. 4947 purchased by a Registered Deed of sale
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dated 15-05-1992 she did not mention specifically the total area under R.S.
Dag No-4947 which she owns and occupies.
As the plaintiffs in the dispute have confined their statements by
contending that the defendant was owner of 3.25 Decimals Bastu Land
(recorded as Danga) together with structure standing thereon the defendant
was required to deal only with regard to the particular area of the bastu land
and no other Land. It is in cross examination the petitioner/D.W.1 was
confronted with the question whether she has purchased 3.25 decimals of plot
no. 4947 and not the entire area she replied that she has purchased 3.25
decimals of plot No-4947. However the petitioner subsequently gave particulars
in her cross examination that she had purchased 3 and ¼ sataks of land from
Panchanam Ram of plot no. 4947 and the statement in her examination-in
chief to the effect that she is the absolute owner of plot no. 4947 are both true
and correct. The petitioner stated that she is the absolute owner of plot no.
4947 and also that she has purchased entire land of the said plot without
specifying the area of the said plot. It is thus necessary to clarify as to how she
is the absolute owner of plot no-4947 and it is for this purpose amendment of
written statement by giving the details of her purchase by different deeds and
producing the same are very much necessary. As plaintiff has not claimed any
right of any portion of plot no-4947 of the petitioner/Defendant, by statement
of the defendant that she had purchased 3.25 decimals of plot no-4947 and not
the entire area no right accrues to the plaintiff with regard to the said plot. As
no right accrues to the plaintiff it cannot be said that due to admission made
by the defendant the defendant/petitioner cannot be refused permission to
cause necessary amendments in the pleadings. It is the duty of the litigants to
disclose all relevant facts before the Court and the Court has also the duty to
know the relevant facts to do justice. Thus nothing can be suppressed before
Court. As the defendant has not only said that she purchased 3.25 decimals of
plot No. 4947 but also stated that she purchased entire plot No. 4947
production of document is necessary by amendment of written statement.
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In the instant case the defendant/petitioner craved leave in written
statement to produce at the time of trial all relevant documents with regard to
ownership of plot no-4947 thus it is her duty to produce the said documents
and for this purpose amendment of written statement is necessary to clarify
and give particulars as to how and to what extent the petitioner/defendant is
owner of plot no-4947.
In the case of Nellinara Jute Mills Vs Rampuria Industries reported in
2009(2) CLJ(cal) p-276 a Learned Single Judge of this Hon’ble Court while
considering the decision of Ahmed Hossein V Chembelli reported in AIR 1951
Cal-262 observed that the decision in Ahmed Hossein clarifies the duty of the
Court that making of amendment is not really the matter of power of a Court
but its duty so that substantial justice may be done for which alone Courts
exist.
It is also to be remembered that Right to Property although is not a
fundamental right but a Constitutional Right in India. Thus all persons have
right to enjoy their property owned by them or under their lawful possession
without any undue interference by others. Thus when enjoyment of such right
is obstructed by interference of others and such right is disputed or questioned
the person who is prejudiced has the right to move the competent Court of Law
to get his right to such property declared and protected. Thus all reasonable
opportunities should be given to the litigants to prove such rights by oral or
documentary evidence at any stage of proceedings. Such opportunity should
ordinarily not be refused merely on the ground of delay or other technicalities.
Where the ownership of property has a history and the documents are old it
may not be possible to trace out all documents from which knowledge can be
gathered as some documents may be misplaced. Thus in such a situation
reasonable opportunity should be given for amendment of pleadings when such
knowledge is obtained. It may so happen documents handed over to Advocate
is not relied in Court and relied in later stage by the same advocate or by newly
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engaged Advocate. In such situation also liberal view should be taken with
regard to Amendment of pleadings.
In the instant case petitioner/defendant contended that she handed over
all documents to her Learned Advocate with regard to ownership of plot no-
4947 but the same was not incorporated, in written statement. Such
contention of the defendant/petitioner cannot be disbelieved. A litigant does
not benefit by not disclosing a document before his Learned Advocate and thus
causing delay. It is on the basis of the Advocate’s advice and litigants
instruction and document, petitions are drafted. Sometimes Advocates may
make mistake in not incorporating relevant document by inadvertence and
sometimes they decide as to what should be relied upon. The
petitioner/defendant being an illiterate old lady cannot be made to suffer for
not incorporating details in the written statement and not filing all documents
with regard to plot no-4947 when in the written statement such undertaking
was given and leave was sought for. The acts of the petitioner/defendant is
thus not mala fide.
In the facts and circumstances this Court is of the view that the
impugned Order passed by Learned Appellate Court cannot be sustained and
the same should be set aside.
Hence this application under Article 227 of the Constitution of India
stands allowed. Order dated 8-7-2022 passed by Learned Additional District
Judge First Court Howrah in Title Appeal No-265 of 2022 is set aside. The
prayer for amendment made by the petitioner is allowed. Petitioner is directed
to carry out the amendment within three weeks. The Learned Appellate Court
shall proceed and dispose the appeal in accordance with law.
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Urgent photostat certified copy of this order, if applied for, should
be made available to the parties upon compliance with the requisite formalities.
(Biswaroop Chowdhury, J.)