Dr. Sirajul Ahmed @ Sher Ali Khan and Ors. Vs Jan Md. Khan @ Zan Md. Ali — Calcutta HC (2024) — LawSathi Research

Dr. Sirajul Ahmed @ Sher Ali Khan and Ors. Vs Jan Md. Khan @ Zan Md. Ali — Calcutta HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

Application for amendment of the plaint allowed and the order impugned set aside; the amended plaint, upon incorporating the dates in paragraph 8 of the plaint as per schedule, to be filed within four weeks; additional written statement to the amended plaint to be filed within four weeks; the learned court to proceed with the hearing of the suit in accordance with law, and the suit to be disposed of within a year from completion of the pleadings.

Issue for consideration

Whether the learned trial court was justified in rejecting the application for amendment of the plaint on the ground that delivery of possession of a property without any written instrument confers no title under Mohammedan Law, rendering an oral gift (and the correction of the date of such gift) impermissible in law. +1 more

Court's answer

At the amendment stage, the correctness or veracity of the statements sought to be incorporated should not be looked into; the learned trial judge ought not to have gone into the merits of the amendment and arrived at a finding that an oral gift was impermissible in Mohammedan Law.

Ratio / Principle

The application being a pre-trial amendment — the suit then standing at the stage of hearing of the injunction application — the contention that the amendment was belated was not accepted.

Key takeaways

A correction of a mistaken date, which may have been detected by the plaintiffs during the proceedings, can always be allowed; accordingly the amendment was allowed and the order impugned was set aside.ratio¶15

Detailed headnote1 paragraphs

CO 1576 of 2022 — Dr. Sirajul Ahmed @ Sher Ali Khan and others v. Jan Md. Khan @ Zan Md. Ali; disposed of on February 22, 2024 (Shampa Sarkar, J.). Revisional application against the order dated April 29, 2022 of the learned Civil Judge (Senior Division), Bishnupur, Bankura, in Title Suit No.18 of 2019, whereby the trial court had rejected the plaintiffs' application to amend paragraph 8 of the plaint so as to correct the date of an alleged oral gift from 1st September, 1973 to 21st September, 1973 — the refusal resting on the trial court's interpretation of Article 300A of the Constitution of India that delivery of possession of a property without any written instrument confers no title under Mohammedan Law, making an oral gift (and the correction of its date) impermissible. This Court held that (i) at the amendment stage the correctness or veracity of statements sought to be incorporated should not be examined, so the trial judge ought not to have judged the merits of the alleged oral gift; (ii) the application was a pre-trial amendment — the suit then being at the hearing-of-the-injunction-application stage — and the belatedness objection therefore failed; and (iii) a mistaken date detected during the proceedings can always be corrected. The amendment was allowed, the impugned order set aside, the amended plaint and an additional written statement each directed to be filed within four weeks, and the suit to be disposed of within a year from completion of the pleadings.

February 22, 2024 Sl. No.5 Court No.19 s.biswas

CO 1576 of 2022

Dr. Sirajul Ahmed @ Sher Ali Khan and others vs. Jan Md. Khan @ Zan Md. Ali

Mr. Partha Pratim Roy Mr. Malay Bhattacharya ... for the petitioners Mr. Arup Krishna Das Mr. Kazi Sajjad Alam Mr. Joy chakraborty Ms. Afsana Khatun Mr. Mainul Thander

... for the opposite party

The revisional application arises out of an order dated April 29, 2022 passed by the learned Civil Judge (Senior Division), Bishnupur, Bankura, in connection with Title Suit No.18 of 2019.

By the order impugned, the learned court rejected an application for amendment of the plaint on the ground that delivery of possession of a property, without any written instrument, would not confer any title under Mohammedan Law. Thus, oral gift was not permissible in law. The amendment for correction of the date of the oral gift was also not permissible in law.

On such finding and upon interpretation of Article 300A of the Constitution of India, the amendment was rejected.

Mr. Roy, learned advocate for the petitioners, submits that this is a pre-trial amendment. The learned court could not have gone into the validity of the gift on the basis of which the petitioners claim to

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be co-sharers of the property involved in the suit. The amendment was necessary to correct the typographical error in paragraph 8 of the plaint. The dates of the oral gift mentioned in paragraph 8 as 1^st September, 1973 should be corrected as 21^st September, 1973.

Learned advocate for the opposite party submits that the date was always within the knowledge of the plaintiffs and the amendment should not be allowed at a belated stage.

Having considered the rival contentions of the parties, this court finds that this was a pre-trial amendment. The suit was at the stage of hearing of the injunction application. Thus, the contention that the amendment is belated, is not accepted.

This court also finds that the learned trial judge had gone into the merits of the amendment sought for and arrived at a finding that oral gift was not permissible in Mohammedan Law. At the stage of amendment, the correctness or veracity of the statements sought to be incorporated, should not be looked into.

The correction of mistake in the date, which may have been detected during the proceedings by the plaintiffs, can always be allowed. The amendment is allowed. The order impugned is set aside.

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The amended plaint upon incorporating the dates in paragraph 8 of the plaint, as per schedule, shall be filed within four weeks. Additional written statement to the said amended plaint shall be filed within four weeks. The learned court shall proceed with the hearing of the suit, in accordance with law. The suit shall be disposed of within a year from completion of the pleadings.

The revisional application is accordingly disposed of.

All the parties are directed to act on the basis of the server copy of the order.

Urgent Photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.

(Shampa Sarkar, J.)