Sri Nepal Sardar vs Deb Kumar Mondal and Others

Prasenjit Mandal, J.—This application is at the instance of the plaintiff and is directed against the order dated September 2, 2008 passed by the learned First Additional Court of Civil Judge (Junior Division), Alipore and the order dated June 29, 2009 passed by the learned Civil Judge (Junior Division), First Court, Alipore in Title Suit No. 91 of 2006.

The plaintiff initially filed the suit for declaration of title, recovery of possession and injunction against the defendant Nos. 1 to 3. Subsequently, the defendant No. 4 was added by an application under Order 1 Rule 10(2) of the Code of Civil Procedure. The plaintiff prayed for cancellation of a certain deed on the basis of which the defendant No. 4 claimed the suit property and for that reason, the plaintiff has also prayed for declaration for cancellation of a deed by the proposed amendment. That application for amendment of the plaint was considered and allowed and thereafter the plaintiff filed the amended plaint. But it was noticed that the amended plaint was not correct and it was mistyped. That is why, it was not accepted. Thereafter, the defendants filed an application under Order 6 Rule 18 of the C.P.C. when the plaintiff filed a corrected amended plaint. That application under Order 6 Rule 18 of the C.P.C. filed by the defendants was allowed and consequently, the amended plaint was not accepted. Under such circumstances, the plaintiff filed another application for amendment of the plaint. But that application was rejected on the ground that the second application for amendment on the selfsame matter is barred by the principles of res judicata. Being aggrieved by the impugned order, the plaintiff/petitioner has come up with this application.

Now, the point for consideration is whether the impugned order can be sustained.

Upon hearing the learned Advocate for the petitioner and on going through the materials on record, I find that admittedly, the plaintiff/petitioner filed the suit for declaration of title, recovery of possession and injunction against the three defendants at first and thereafter the defendant No. 4 was added subsequently when it came to the knowledge of the plaintiff that he was also claiming the suit property by virtue of a deed executed in favour of his vendor. Under the circumstances, the plaintiff prayed for amendment of the plaint which was allowed at first. But the plaintiff failed to file the corrected amended plaint one within the time limit and for that reason, the defendants filed an application under Order 6 Rule 18 of the C.PC. which was allowed thereby rejecting the amended plaint. So, the position remains that amendment was not allowed and it is in the same position before the so-called order of the amendment. Subsequently, when the plaintiff filed another application for amendment of the plaint, that was rejected on the ground that the said application is barred by the principles of res judicata. Since the earlier application for amendment of the plaint was rejected because of non-compliance of the provision of Order 6 Rule 18 of the C.P.C. within the stipulated period of two weeks, it cannot be said that the application for amendment was taken into consideration.

This being the position, the subsequent prayer for amendment, I hold, is not hit by the principles of res judicata. So, the learned Trial Judge has failed to exercise his jurisdiction. Accordingly, the application for amendment of the plaint should have been allowed.

The application succeeds. It is allowed. The impugned orders dated September 2, 2008 passed by the learned Civil Judge (Junior Division), First Additional Court, Alipore and the impugned order dated June 29, 2009 passed by the learned Civil Judge (Junior Division), First Court, Alipore in Title Suit No. 91 of 2006 are set aside. The application for amendment of the plaint stands allowed.

The plaintiff is directed to file the amended plaint before the learned Trial Court within 14 days from date failing which the petition for amendment of the plaint shall be treated as not allowed.

Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.