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Sm. Sailabala Dassi Vs. Sambhunath Barik and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1337 of 1965
Judge
Reported inAIR1973Cal378
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantSm. Sailabala Dassi
RespondentSambhunath Barik and ors.
Appellant AdvocateDas, Adv.
Respondent AdvocateKapoor, Adv.
Cases ReferredA. K. Gupta and Sons v. Damodar Valley Corporation
Excerpt:
- .....the question of limitation also does not arise because this is not a new case but an additional approach to the same case that is sought to be made out in the plaint.10. i accordingly, allow the amendment and make an order as follows:11. there will be an order in terms of prayers (i), (ii) and (iii) of the summons the amended copy be served on the respondents within a week from the date when such amendment would be effected. additional written statement or written statements, if any be filed within a fortnight thereafter. additional discovery, if any, by letter within three days thereafter; inspection forthwith thereafter and the suit is to appear in the peremptory list six weeks hence. the plaintiff is to pay costs of this application to the defendant sachindra nath barik.....
Judgment:
ORDER

Ramendra Mohan Datta, J.

1. This is an application for the amendment of the plaint in an Administration Suit. The Suit was filed in 1965 and the written statement was filed sometime in December, 1965. In paragraphs 14, 15, 19, 29 of the plaint and in Annexure 'C' thereto it was pleaded in substance that the properties being premises Nos. 84 Bidhan Saranee and 8 and 12 Chittaranjan Avenue were purchased from out of the funds of the estate.

2. In the written statement such allegations were denied and in substance the defendant Sachindra Nath Barik stated therein that the properties being premises Nos. 8 and 12 Chittaranjan Avenue, Calcutta on which a cinema house was built, solely belonged to him and he was in possession thereof all throughout and the same did not form part of the estate of the deceased.

3. The plaintiff did not take any step to amend, her plaint so long but after her evidence had been taken on commission she had been advised to have the plaint amended to include a prayer for a declaration that the said two properties being premises Nos. 84 Bidhan Sarani and 8 and 12 Chittaranjan Avenue. Calcutta, belonged to and formed part of the estate of Kalipada Barik, deceased. In support of that prayer the plaintiff now seeks to introduce by amendment the averments made in paragraphs 19-A and 19-B of the draft plaint annexed to the petition by alleging, inter alia, that the said properties were acquired with the funds of the said estate although in the benami name of the defendant and/or any of the defendants and that the said Sachindra Nath Barik denies and is interested in denying that the said properties belonged to and formed part of the estate of the said Kalipada Barik, deceased. On that basis the amendment application has been made.

4. Dr. Das appearing on behalf of the petitioner contends' that all the averments, which are necessary to plead benami, are already pleaded in the plaint but the prayer for declaration was not there and in order to get that declaration his client has been advised to make necessary averments as shown in red ink in paragraphs 19-A and 19-B of the draft plaint annexed to the petition herein. Mr. Roy Chowdhury appearing on behalf of Sachindra Nath Barik, on the other hand, contends that the right over the said premises at Chittaranjan Avenue was exercised by his client since at least as far back as in December, 1965, when in his written statement he asserted that the property-being premises Nos. 8 and 12 Chittaranjan Avenue belonged to his client and that he was in exclusive possession and enjoyment thereof, but in spite thereof the plaintiff allowed the time to pass by and after the period of limitation has expired she has now sought to make this application, accordingly, this application is barred by lapse of time and ought not to be allowed. Mr. RoyChowdhury further contends that in so far as the land in premises Nos. 8 and 12 Chittaranjan Avenue is concerned, there is nopleading that the same was purchased by the money belonging to the estate and accordingly the amendment that is now sought to be introduced would bring in a new case in the plaint and at this stage this should not be allowed. Mr. Kapoor appearing on behalf of defendant No. 2 Sarajendra Nath Barik and in support of the petitioner contends that if paragraph 29 of the plaint, as originally drafted, is read along with theschedule being Annexure 'C' to the plaint, then it will be clear that the necessary averment relating to the purchase of the property being the land and premises Nos. 8 and 12 Chittaranjan Avenue, Calcutta, was already pleaded. To my mind Mr. Kapoor's contention should be accepted and I accept- the same.

5. The question before me is whether the amendment which is now sought to be introduced will constitute, a new case or is it a different or additional approach to the same facts which are already there. By introducing the question of benami would it constitute a new case or was the necessary pleading relating to benami already there in substance in the pleading.

6. In my opinion in this Administration suit this prayer for amendment shouldbe allowed for the purpose of determining the real question in controversy between the parties. The facts were undoubtedly there in the plaint as it was originally drafted, but the question of getting a declaration for that purpose was not considered at that time and the same ought to be allowed so that the saidquestion may be gone into and decided at the trial and the rights of the parties herein may be finally determined.

7. In my opinion, the question of delay should not stand in the way in a case of this nature when the averments are already there; but in order to effectively adjudicate the rights of the parties the relief by way of a declaration as prayed for should be allowed to be pleaded by way of amendment.

8. Several cases have been cited before me, but I think the principle as laid down in the case of A. K. Gupta and Sons v. Damodar Valley Corporation, reported in : [1966]1SCR796 applies here on the facts and circumstances of this case and on that basis I should hold that the amendment that is now sought to be introduced does not constitute the addition of a new cause of action or a new case but it constitutes a different or additional approach to the same facts.

9. In my opinion the question of limitation also does not arise because this is not a new case but an additional approach to the same case that is sought to be made out in the plaint.

10. I accordingly, allow the amendment and make an order as follows:

11. There will be an order in terms of prayers (i), (ii) and (iii) of the summons The amended copy be served on the respondents within a week from the date when such amendment would be effected. Additional written statement or written statements, if any be filed within a fortnight thereafter. Additional discovery, if any, by letter within three days thereafter; inspection forthwith thereafter and the suit is to appear in the peremptory list six weeks hence. The plaintiff is to pay costs of this application to the defendant Sachindra Nath Barik including the costs of additional written statement which will be borne by the applicant and paid to the defendant Sachindra Nath Barik. Certified for counsel.

12. Department is to act on a signed copy of the minutes.


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