Allowed¶23

Soumitra Kayal @Sukhendu Kayal v. Ananya Gayen and Ors.

Calcutta HC12 Sept 2024CO/3178/2024

Case brief

AI extract

What is this about?

Article 227 revisional jurisdiction; pre-emption; West Bengal Land Reforms Act, 1955 Sections 8 and 9; amendment of written objection/pleadings; Order VI Rule 17 Code of Civil Procedure — proviso restricting amendment after commencement of trial; trial commenced, cross-examination of pre-emptor over; unreported CO 698 of 2023 (coordinate Bench, May 16, 2024) distinguished; impugned Order No.33 dated August 03, 2024 set aside; costs Rs.1,000/-; Diamond Harbour, District 24 Parganas (South); Biswajit Basu, J.; decided 12.9.2024; CO 3178 of 2024 allowed without costs; expedited disposal directed.

What did the court decide?

Impugned Order No.33 dated August 03, 2024 set aside; learned Trial Judge requested to expedite the disposal of the Misc. Case; CO 3178 of 2024 allowed without any order as to costs. ¶23

Soumitra Kayal @Sukhendu Kayal Vs Ananya Gayen and… — Writ and Judicial Review | Calcutta HC (2024)

What the court decided

AI extract

Outcome

Impugned Order No.33 dated August 03, 2024 set aside; learned Trial Judge requested to expedite the disposal of the Misc. Case; CO 3178 of 2024 allowed without any order as to costs.

¶23

Issue for consideration

Whether the learned Trial Judge rightly allowed the pre-emptees' amendment of their written objection at a stage when the trial had commenced and cross-examination of the pre-emptor was over, given the restriction under the proviso appended to Order VI Rule 17 of the Code of Civil Procedure on amendments after commencement of trial.

¶19

Court's answer

As the trial had commenced and progressed to cross-examination of the pre-emptor, and the amendment application lacked any explanation why the amendment could not be made before commencement of trial, the restriction under the proviso appended to Order VI Rule 17 of the Code of Civil Procedure squarely applied, so the post-trial amendment ought not to have been allowed.

¶19

Ratio / Principle

The unreported judgment of a coordinate Bench passed on May 16, 2024 in CO 698 of 2023, relied on by counsel for the opposite parties to urge liberal allowance of amendment, is distinguishable on the facts of the present case and merely lays down the general principle for dealing with amendment applications; it is not a pointer to the issue under consideration.

¶20

Key takeaways

For the aforesaid reasons, the order impugned (Order No.33 dated August 03, 2024 allowing the amendment) is not sustainable and is set aside.ratio¶21

Detailed headnote1 paragraphs

Civil revisional application under Article 227 of the Constitution (CO 3178 of 2024) by the pre-emptor, Soumitra Kayal @ Sukhendu Kayal, in pre-emption Misc. Case No. 23 of 2022 under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 pending before the 1st Court of the Civil Judge (Junior Division), Diamond Harbour, District 24 Parganas (South): the learned Trial Judge's Order No.33 dated August 03, 2024, allowing the pre-emptees'/opposite parties' application for amendment of their written objection with costs of Rs.1,000/-, was held unsustainable and set aside by Biswajit Basu, J. (decided 12.9.2024), because the trial had already commenced and progressed to cross-examination of the pre-emptor while the amendment application carried no explanation why the amendment could not have been effected before commencement of trial — the restriction in the proviso appended to Order VI Rule 17 of the Code of Civil Procedure thereby applying squarely. The unreported judgment of a coordinate Bench of the same Court passed on May 16, 2024 in CO 698 of 2023, pressed by counsel for the opposite parties for liberal allowance of amendment, was distinguished as dealing only with the general principle and not a pointer to the issue at hand. CO 3178 of 2024 was allowed with these observations and without any order as to costs; the Trial Judge was requested to expedite disposal of the Misc. Case.

¶1

S/L 6 12.9.2024 Court No.19 SD

¶2

IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION

¶3

CO 3178 of 2024

¶4

Soumitra Kayal @ Sukhendu Kayal

¶5

Vs.

¶6

Ananya Gayen & Ors.

¶7

Mr. Tapas Kumar Majumdar Mr. Partha Pratim Bhattacharjee

¶8

... for the Petitioner.

¶9

Mr. Goutam Das

¶10

Ms. Varsha Roy

¶11

… for the Opposite Parties.

¶12

The pre-emptor in a proceeding under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 being Misc. Case No. 23 of 2022 pending before the 1^st Court of learned Civil Judge (Junior Division) at Diamond Harbour, District: 24 Parganas (South) is the petitioner of the instant application under Article 227 of the Constitution of India.

¶13

The pre-emptees, the opposite parties herein had applied for amendment of their written objection to the application for pre-emption.

¶14

The learned Trial Judge by the order impugned being Order No.33 dated August 03, 2024 has allowed the said application with costs of Rs.1,000/-.

¶15

Mr. Tapas Kumar Majumdar, learned advocate for the petitioner submits that the cross-examination of the pre-emptor is over; at this stage, the learned Trial Judge should not have allowed the application for amendment.

¶16

Mr. Goutam Das, learned advocate for the opposite parties on the other hand submits that the proposed amendment is very formal in nature and is necessary for the effective adjudication of the proceeding. He places reliance on an unreported judgment of a coordinate Bench of this Court passed on May 16, 2024 in CO 698 of 2023 to contend that the amendment should be liberally allowed.

¶17

¶18

Heard learned advocate(s) for the parties, perused the materials on record.

¶19

The trial of the suit admittedly has not only commenced, but it has progressed to the stage of crossexamination of the pre-emptor. The application for amendment lacks any explanation as to why such amendment could not be made before the commencement of trial, therefore the restriction imposed under the proviso appended to Order VI Rule 17 of the Code of Civil Procedure to allow an application for amendment after commencement of trial squarely applies in the instant case.

¶20

The unreported judgment relied on by Mr. Das is distinguishable in the facts of the present case, inasmuch as in the said decision, the general principle as to how an application for amendment of pleadings needs to be dealt with, has been laid down. The said decision is not a pointer to the issue under consideration in the present revisional application.

¶21

The order impugned for the aforesaid reason(s) is not sustainable and is accordingly set aside.

¶22

The learned Trial Judge is requested to expedite the disposal of the Misc. Case.

¶23

CO 3178 of 2024 is allowed with the above observation without any order as to costs.

¶24

Parties to act on the server copy of this order duly downloaded from the official website of this Court.

¶25

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

¶26

(Biswajit Basu, J.)

Soumitra Kayal @Sukhendu Kayal v. Ananya Gayen and Ors.

Case brief

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Soumitra Kayal @Sukhendu Kayal v. Ananya Gayen and Ors.

Case brief

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