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Judgment
Affidavit-of-service filed by the petitioners showing service of the instant application under Article 227 of the Constitution of India on the opposite parties be kept with the record.
The instant revision is filed by the plaintiffs of Title Suit No.67 of 2015 pending in the Court of learned Civil Judge (Senior Division), Serampore challenging the legality, validity, material irregularity of impugned order dated 23.09.2016.
The salient facts that are necessary for disposal of the instant revision are as follows:-
The petitioners, being the plaintiffs, filed the above mentioned title suit praying for partition of the suit property against the defendants/opposite parties and other consequential reliefs.
During the pendency of the suit the plaintiffs came up with an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure praying for amendment of plaint.
The learned trial Judge by passing the order impugned on 23rd September, 2016 partly allowed the prayer of the petitioners for amendment of the plaint but refused to allow the prayer portion for amendment of prayer portion of the plaint by way of inserting the prayer for appointment of receiver. The aforesaid order was challenged by the petitioners in the instant revision.
I have heard Mr. Anit Rakshit, learned Advocate appearing for the petitioners.
Nobody is present on behalf of the opposite parties in spite of proper service.
The learned trial Court refused the prayer for amendment of plaint partly on the following reasons:-
"From the petition u/o 6 Rule 17 of CPC I find no reason is mentioned in the petition regarding amendment sought for regarding prayer 20(vi) of the plaint i.e. regarding prayer for 'receiver'.
There is also no pleadings in the plaint regarding need of appointment of receiver.
Amendment cannot be allowed to fill up any lacuna when cause for necessity of amendment is not stated. The amendment regarding addition of word 'receiver' in paragraph 20(vi) of plaint i.e. as regard point no.16 of schedule of amendment petition is refused."
Having heard the submission made by Mr. Rakshit on behalf of the petitioners and on perusal of the plaint as well as petition under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure and the impugned order dated 23rd December, 2016, it is ascertained that the learned trial Judge refused amendment of plaint insofar as it relates to inclusion of a prayer for appointment of receiver on the ground that no case in support of appointment of receiver has been made out by the petitioners in the original plaint.
In my considered view the learned trial Judge is not justified in rejecting the prayer for amendment of plaint on the sole ground that no case in support of appointment of receiver is made out in the plaint, because at the stage of consideration of application for amendment of pleadings, it is required by the Court to see whether the proposed amendment will change the nature and character of the entire suit or not. At the stage of consideration of a prayer for amendment of plaint, the Court cannot see as to whether the plaintiffs/petitioners have the chance of success in getting relief in respect of the proposed prayer sought to be amended. If the petitioners in future fail to establish their relief for appointment of receiver the same will be refused. For these reasons, an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure cannot be rejected by the trial Court.
In view of the above discussion, I have no other alternative but to hold that the impugned order dated 23rd September, 2016 cannot stand so far as it relates to refusal of the prayer for amendment of plaint by way of inserting the prayer for appointment of receiver.
The impugned part of the order dated 23rd September, 2016 is, accordingly, set aside. The instant revision is, therefore, allowed.
There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be delivered to the learned Advocates for the parties, upon compliance of all formalities.