Gautam Maitra and 2 Ors. Vs Smt. Bacchi Devi

The present application has been filed under Article 227 of the Constitution challenging the order dated 04.07.2024 whereby the application filed under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ‘the Code’) being Misc.(J) Case No.68/2021 was rejected.

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It is relevant to take note of that the suit was filed in the year 2009 and an application seeking amendment was filed in the year 2021. The learned Trial Court had duly observed that the suit has reached the stage of official PWs after completion of the cross-examination of the plaintiffs’ witnesses and it is at that stage, the plaintiffs have sought for amendment of the plaint. The learned Trial Court held that as there was no due diligence shown on the part of the plaintiffs as required under Order VI

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Rule 17 of the Code, the reliefs which have been sought for by way of the amendment of the plaint could not be allowed.

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This Court has duly heard Mr. G. Choudhury, the learned counsel appearing on behalf of the petitioners who submitted that the amendment so sought for ought to have been allowed taking into account that the plaintiffs did not seek any amendment to the pleadings in the plaint, but only sought for inclusion of a relief in the plaint. He further submitted that the plaint has to be read as a whole, and as such, the learned Trial Court had committed an error in not allowing the application seeking amendment.

¶26

This Court has duly taken note of the application so filed seeking amendment which is mentioned with the heading “an application for amendment of the plaint arising out of subsequent events”. In the said application, though various aspects have been mentioned about certain constructions being carried out in violation of the status-quo order, but there is no mention as to what amendment has been sought for in respect to the pleadings of the plaint.

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Be that as it may, in the relief section of the said application, the petitioners have stated that they only wanted an addition of the relief of eviction of the defendant No.2- Smt. Bachi Devi with

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her sons and men and materials from the suit land with demolition of unauthorized houses and structures from the suit land along with the recently constructed permanent structures and shop rooms with clear vacant possession of the suit land to the plaintiffs.

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This Court therefore taking into account the said application is of the opinion that the amendment which has been sought for is only as regards insertion of a relief in the plaint and nothing more. It is relevant to take note of that at paragraph No.7 of the said application, the petitioners have mentioned that on an account of inadvertence, the said relief was not sought for.

¶31

This Court is of the opinion that seeking amendment of the pleadings and inclusion of a relief by way of an amendment are two different aspects of the matter. Furthermore, the relief which is sought to be inserted is within the period of limitation.

¶32

According, this Court therefore is of the opinion that the learned Trial Court ought to have allowed the application seeking amendment thereby to insert the relief sought for to the plaint.

¶33

This Court also takes note of that in the application so filed seeking amendment, the plaintiffs have done so in a very casual manner without mentioning specifically as to what was the relief which was sought to be inserted by amendment of the plaint

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which is otherwise required to have been specifically mentioned in the said application.

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Be that as it may, on the ground of technicality, this Court would not deny the relief to the petitioners.

¶37

According, this Court allows the present application thereby allowing the Misc.(J) Case No.68/2021. This Court further taking into account the prayer in the said application, inserts the following relief as relief d(1) to the plaint:-

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“d(1) Recovery of khas possession thereby evicting the defendant No.2- Smt. Bachi Devi with her sons and man and materials from the suit land with demolition of unauthorized houses and structures from the suit land along with the recently constructed permanent structures and shop rooms with clear vacant possession of the suit land to the plaintiffs”.

¶39

This Court further directs the plaintiffs on the basis of the instant order to submit the amended plaint before the learned Trial Court on the next date so fixed hereinafter. This Court further observes and makes it clear that by way of allowing the instant application, no pleadings have been inserted to the plaint. What is inserted is only the relief d(1) as stated at paragraph No.12 herein above. Under such circumstances, there shall be no

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further opportunity to the plaintiffs to adduce any further evidence.

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The stay order passed by this Court dated 20.11.2024 stands vacated and the petitioners herein who are the plaintiffs are directed to appear before the learned Trial Court on 27.06.2025 on which date the amended plaint be filed by the plaintiffs/petitioners herein.

¶43

Before parting with the record, this Court expresses its deep anguish in the manner in which the present petition is filed. The plaint as well as the written statement are not only illegible but only contains comments written in hand. The filing of a petition in this manner clearly shows lack of professionalism. Further to that, even the amendment application which was filed before the learned Trial Court did not contain what relief was sought to be inserted. The fault obviously would not be of the petitioners, but of the counsel of the petitioners both before this Court as well as the learned Trial Court. It is relevant to observe that when a litigant approaches an advocate, it is his duty to do the needful to the best of his/their ability and lack of diligence and professionalism is apparent on the part of the counsels of the petitioners before the learned Trial Court and before this Court. As a matter of deterrent, this Court imposes a cost of Rs.25,000/- upon the counsels appearing on behalf of the

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petitioners to be deposited before the Registry of this Court within 7 days from today. This Court further directs that upon deposit of the said amount, the Registry shall disburse the same to the Legal Services Authority. Failing to deposit the said amount, the Registry shall list the matter before this Court for further order(s).

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With the above observations and directions, the instant petition stands disposed of.

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JUDGE

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Comparing Assistant

Gautam Maitra and 2 Ors. v. Smt. Bacchi Devi

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Gautam Maitra and 2 Ors. v. Smt. Bacchi Devi

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