Subodh Kumar Mondal vs Sarojaksha Palak & Ors

Biswajit Basu, J

The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for declaration and is directed against Order No. 24 dated June 12, 2018 passed by the 2nd Court of learned Civil Judge, (Junior Division), Kandi, District Murshidabad in Title Suit No. 10 of 2004.

The plaintiff in the suit after commencement of trial filed an application under Order 6 Rule 17 of the Code of Civil Procedure thereby prayed amendment of the schedule of the plaint. The learned trial Judge has dismissed the said application by the order impugned on two-fold grounds;

Firstly, the trial of the suit has commenced and the petitioner has not offered any explanation satisfying the requirement of the proviso appended to Order 6 Rule 17 of the code and;

Secondly, the petitioner was permitted to amend the schedule of the plaint earlier vide order dated July 2, 2004 but such amendment was not carried out by the petitioner.

Mr. Chaturvedi, learned counsel appearing on behalf of the petitioner draws my attention to the said order dated July 2, 2004.

It appears on perusal of the said order that the learned trial Judge by the said order allowed the petitioner to amend the cause title of the plaint treating the said application for amendment as a part of the plaint. Therefore, dismissal of the application for amendment of the plaint on the said ground is not justified.

However, on perusal of the application for amendment of plaint it appears that the petitioner has not offered any explanation enabling the Court to come to a conclusion that in spite of due diligence the said amendment could not have been made prior to the commencement of trial of the suit, as required under the proviso appended to Order VI Rule 17 of the Code.

The requirement of proviso appended to Order VI Rule 17 of the Code is mandatory in nature unless the jurisdictional fact, as envisaged in the proviso to Order VI Rule 17 of the Code is found to be existing the Court will have no jurisdiction at all to allow the amendment of the plaint. The Courts jurisdiction to allow such application is taken away unless the conditions therefor are satisfied viz it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of trial as has been held by the Hon'ble Supreme Court in the case of Vidyabai and Ors. Vs. Padmalatha and Anr., reported in (2009) 2 Supreme Court Cases 409.

This Court, therefore, does not find any illegality and/or infirmity in the ultimate conclusion of the order impugned to dismiss the application under Order VI Rule 17 of the Code filed by the petitioner.

The learned trial Judge by the selfsame order has dismissed the application filed by the petitioner under Order XXVI Rule 9 of the Code seeking investigation of the suit property, which is also under challenge in the present revisional application.

The learned trial Judge has dismissed the said application as a consequence of the dismissal of the application for amendment of the plaint.

The said application for local investigation of the suit property since stands in an independent footing, dismissal of the said application consequent upon dismissal of the application for amendment of the plaint is not sustainable. The said application requires to be adjudicated on it's own merit.

For the aforesaid reason the order impugned so far as it relates to the dismissal of the said application under Order XXVI Rule 9 of the Code is concerned, is set aside with a direction upon the learned trial Judge to decide the said application afresh.

It is made clear this Court has not gone into the merit of the said application and the learned Trial Judge is free to decide the same in accordance with law.

With the above, C.O. No. 2617 of 2018 is disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.