MANU/WB/0252/2020

IN THE HIGH COURT OF CALCUTTA

C.O. 3734 of 2019
Decided On: 10.02.2020
Appellants: Shrimati Nilima
Vs.
Respondent: Ashok Kumar Jana and Ors.
Hon'ble Judges/Coram:
Shampa Sarkar, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Rabindranath Mahato and Aritra Shankar Ray
For Respondents/Defendant: Sukanta Das
DECISION
Shampa Sarkar, J.
1 . This is an application filed by the plaintiff in Title Suit No. 43 of 2008, being
aggrieved by an order dated September 13, 2019 passed by the learned Civil Judge
(Junior Division), 1st Court at Paschim Medinipur. It is stated that by the order
impugned, the learned Court below rejected an application under Order 6 Rule 17 of
the Code of Civil Procedure on the ground that the averments said to be incorporated
by way of an amendment was inconsistent with the earlier pleadings. It was further
rejected on the ground that the application was delayed, inasmuch as, the trial had
commenced. It appears that the order impugned was passed at the time when the
issues have been framed. However, it appears from the pleadings that the defendants
filed their written statement in 2014 that is after five years from the institution of the
suit. In the written statement, the defendants disclosed a deed of gift on the basis of
which they claimed to have acquired title of the suit property. Thereafter, the plaintiff
applied for a certified copy of the said deed of gift and the plaintiff came to know that
the donor had not executed the said deed of gift but the same was executed by a
third party. The plaintiff contended that such fact with regard to the deed of gift
should be incorporated in the plaint and she should be allowed an opportunity to
insert a prayer that the deed of gift was void and illegal. The plaintiff also sought to
claim, title by way of adverse possession in addition to the plea of possession and
title by way of amicable settlement/arrangement with the heirs of Jagabandhu Jana.
2 . Evidence has not yet started. Whether the plaintiff/petitioner was entitled to any
right, title and interest was an issue which will be decided in trial and the deed of gift
will be taken into consideration. When the petitioner came to know of the gift deed
from the written statement she applied for the certified copy and obtained the same
in 2016. The plaintiff/petitioner could not have filed the amendment application prior
to the said date. The right, title and interest of the plaintiff will be decided in any
event, and the pleadings sought to be incorporated by way of an amendment does
not amount to destruction of the earlier pleadings. Neither is their serious
contradiction in the pleadings. The amendment does not amount to changing the
nature and character of the suit. It is also seen that the amendment sought to be

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 incorporated, was not withdrawal of any admission made by the plaintiff. By
challenging the deed of gift, which came to the knowledge of the plaintiff in 2014 and
the certified copy of which was obtained by the petitioner in 2016, the plaintiff has
not changed the nature of the suit. The correctness of the averments sought to be
incorporated will be decided at the trial and not the at the stage of consideration of
the application for amendment.
3 . This Court does not accept the view taken by the learned trial judge, that the
plaintiff should have filed this amendment application at an earlier stage. This was a
suit for declaration of title of the plaintiff on the basis of the inheritance from the
Jagabandhu Jana and by way of a family arrangement. The plaintiff sought to
incorporate an alternative prayer of title by adverse possession. In paragraph 3 of the
plaint, the petitioner has categorically mentioned that the plaintiff/petitioner was in
possession of the suit property by building a dwelling house and was residing there
along with her family members. Thus, it is not a fact that petitioner was not in
possession of the property, and the plea of being in possession was taken at the time
of initiation of the suit.
4. Under such circumstances, this is neither a case which is barred under the proviso
of Order 6 Rule 17 of the Code of Civil Procedure nor it is the case where the plaintiff
did not exercise due diligence in order to incorporate the facts by way of amendment.
5. The order impugned is set aside.
6. The plaintiff will file the amended plaint within a period of one month from date.
Such amended plaint will be accepted subject to payment of cost of Rs. 1,000/- to be
deposited in the learned Court below.
7. The opposite parties will be at liberty to withdraw the same.
8 . The opposite parties/defendants will be entitled to file the additional written
statement within 2 months from date of receipt of the copy of the amended plaint.
After the additional written statement is filed, the suit will proceed in accordance with
law.
9 . The learned Court below is directed to frame additional issue with regard to the
facts, incorporated by way of the amendment.
10. The revisional application is, thus, disposed of.
11. There shall be, however, no order as to costs.
1 2 . Urgent photostat certified copy of this order, if applied for, be given to the
parties on priority basis.
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