Sree Sree Gopal Jew Thakur vs Gopal Saha & Ors.

Per, HIRANMAY BHATTACHARYYA, J.:

Affidavit-of-service filed on behalf of the petitioner is taken on record.

Written Notes of Argument filed by the learned advocate for the opposite parties is taken on record.

This application under Article 227 of the Constitution of India is at the instance of the plaintiff/respondent in the Title Appeal and is directed against an order being no.81 dated 01.07.2026 passed by the learned Judge, IV Bench, City Civil Court at Calcutta in Title Suit No.86 of 2017.

By the order impugned, the application filed by the petitioner under Order VI Rule17 of the Code of Civil Procedure stood rejected. The petitioner filed an application praying for amendment of the plaint at the appellate stage. The learned Trial Judge by the order impugned rejected the said application on the ground that the proposed amendment is not formal in nature and would change the nature of the suit.

Learned advocate appearing for the petitioner submits that though the suit was filed for eviction in respect of a land together with a temporary structure standing thereupon but due to inadvertence in the Schedule of the plaint the structure was not referred to. He further submits that unless the proposed amendment is allowed it would result in complications at the stage of execution if this petitioner succeeds in the appeal.

Per contra, learned advocate, appearing for the opposite parties, submits that the application for amendment has been filed after sixteen years of filing of the suit. He submits that the suit for eviction filed in respect of a vacant land is not maintainable under the provisions of the West Bengal Premises Tenancy Act, 1997. He further submits that neither the Schedule of the plaint nor the tenancy agreement as well as the notice to quit refers to any structure standing on the land, which is the subject-matter of the suit for eviction. He submits that the proposed amendment, if allowed, would change the nature and character of the suit property. He further submits that the said application has been made at an appellate stage which is not permissible under law.

Heard the learned advocates for the parties and perused the materials placed.

Order VI Rule 17 of the Code of Civil Procedure states that the Court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Proviso thereto states that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

After going through the provisions of Order VI Rule 17 of the Code of Civil Procedure, this Court is of the considered view that the object behind Order VI Rule 17 is to allow all amendments that may be necessary for the purpose of determining the real question in controversy between the parties. The proviso to Order VI Rule 17 of the Code, no doubt, curtails the exercise of discretion by the Court to allow an application after commencement of trial. In case an amendment application is filed after commencement of trial the applicant has to satisfy the Court that in spite of due diligence he could not have filed the application before the commencement of trial.

The Hon’ble Supreme Court in Life Insurance Corporation of India vs. Sanjeev Builders Pvt. Ltd. and Another reported at (2022) 16 SCC 1, held that the expression “shall” appearing in latter part of Order VI Rule 17 mandates that all amendments are to be allowed, which are necessary for determining the real question in controversy provided it does not cause injustice or prejudice to the other side. It was held that the prayer for amendment is to be allowed if the amendment is required for effective and proper adjudication of the controversy between the parties and to avoid multiplicity of proceedings provided the amendment does not result in injustice to the other side; by the amendment, the parties seeking amendment do not seek to withdraw any clear admission made by the party which confers right on the other side, and the amendment does not raise a time-barred claim, resulting in divesting other side of a valuable accrued right. It was further held that in dealing with a prayer for amendment of pleadings the Court should avoid a hyper-technical approach, and is ordinarily required to be liberal especially when opposite party can be compensated by costs. Where the amendment would enable the Court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, prayer for amendment should be allowed. It was further held that amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

In the case on hand, the petitioner has approached the Appellate Court with a prayer for amendment of the plaint. This Court has to now consider whether the proposed amendment is necessary for the purpose of deciding the real controversy between the parties and the amendment is intended to rectify the absence of material particulars in the plaint.

After going through the plaint, this Court finds that in paragraph-1 of the plaint it has been stated that the defendants were monthly tenants by operation of law under the plaintiff in respect of land measuring about 47’×25’=1175 sq.ft, that is, 1 cottah, 10 chittaks 5 sq.ft, including one tin shed measuring 10’×8’ of premises no.44C, Sovabazar Street, P.S.-Jorabagan, Kolkata-700005, at a monthly rental of Rs.800. However, in the Schedule of the plaint the suit property was described as piece or parcel of land measuring 47’×25’ Sq.ft. at premises no.44C, Sovabazar Street, P.S.-Jorabagan, Kolkata-700005 and the boundaries of the suit property were also indicated in the Schedule.

Learned advocate appearing for the opposite parties would vehemently contend that the Schedule of the agreement for tenancy which was marked as Exhibit-5 in the suit also does not refer to the tin shed temporary structure. However, after going through the tenancy agreement, more particularly paragraph-4 thereof, this Court finds that it has been mentioned that the shebaits shall allow the party of the second part, that is the opposite parties herein, to use the temporary structure with the tin roof covering an area by 10’×8’ at the corner of the left side of the said plot and the area is also bounded by fencing of temporary nature.

Thus, this Court finds that there is reference of the tin structure both in the body of the plaint as well as in the body of the tenancy agreement. This Court, therefore, holds that by way of amendment the petitioner attempted to correct the material particulars in the plaint.

Three Hon’ble Judges of the Supreme Court in Sajjan Kumar vs. Ram Kishan reported at (2005) 13 SCC 89, even after observing that the plaintiff ought to have been diligent in promptly seeking amendment in the plaint at an early stage of the suit, opined that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff-appellant succeeding in the suit.

After going through the plaint of the instant suit, this Court finds that the subject-matter of dispute in the suit for eviction was land together with temporary structure but the tin structure was not incorporated in the Schedule of the plaint. The proper description of the suit property is necessary for the purpose of deciding the real controversy between the parties to the suit more effectively. To the mind of this Court, the proposed amendment is necessary to make the suit property as described in the Schedule of the plaint in conformity with the description of the property as specifically mentioned in the body of the plaint.

This Court, therefore, is of the considered view that unless the petitioner is allowed to amend the plaint by incorporating the proposed amendment, there would be needless complication at the stage of execution in the event the plaintiffs/respondents herein succeed in the appeal. Considering the fact that the petitioner has prayed for amendment of plaint at the stage of Title Appeal, this Court is of the considered view that the opposite parties have to be compensated by way of payment of cost.

Learned Judge took a hyper-technical approach by not considering the scope of the suit but only considered the Schedule of the plaint and compared the same with the Schedule of the tenancy agreement. This Court is not inclined to accept the reasoning assigned by the learned Judge of the Appellate Court that if the proposed amendment is allowed the same would change the nature of the suit. Even if the proposed amendment is allowed, the suit would remain a suit for eviction and the nature of the suit cannot be said to be changed even by allowing the amendment. For such reason, this Court is inclined to interfere with the order impugned.

Accordingly, the impugned order is set aside. The application for amendment of plaint stands allowed, subject to payment of cost of Rs.15,000/- to be paid by the petitioner to the opposite parties within a period of 14 working days from the date of receipt of a server copy of this order. If the cost is not paid to the opposite parties within the time limit mentioned hereinbefore, this order shall not enure to the benefit of the petitioner and the civil revisional application shall be deemed to have been dismissed without any further reference to this Court. The petitioner shall file an amended plaint within 14 working days from the receipt of a server copy of this order and serve a copy of the same to the learned advocate for the appellants in the Title Appeal. The appellants in Title Appeal No.86 of 2017 shall be at liberty to file an additional written statement within three weeks from the date of service of the copy of the amended plaint. The learned Judge of the appellate Court shall proceed with the hearing of the appeal in accordance with law.

Hence, the instant revisional application is disposed of.

All parties shall act on the server copy of this order duly downloaded from the official website of this Court.