Harish Tandon, J.:— This revisional application is directed against the order No. 53 dated 13 December, 2013 passed by the learned Civil Judge (Senior Division), Additional Court, Berhampore, Murshidabad in Other Suit No. 209 of 2010, by which an application for amendment of the written statement is rejected.
Undoubtedly the suit, filed in the year 2009, reached the stage of trial. The plaintiff took out an application for amendment of the plaint incorporating the fact, which according to the plaintiff is necessary for the purpose of determination of the disputes involved in the suit. The Court allowed the said application and the defendant felt aggrieved by such order.
According to the defendant/petitioner the core issue in the said suit is whether the tenancy is for residential or commercial purposes.
A specific defence is taken in the written statement that the said tenancy is governed by the provisions of the West Bengal Premises Tenancy Act, 1997 and in the event it is held that such tenancy is residential or commercial, it would have an impact on the pecuniary jurisdictioin of the Court to entertain the said suit.
A meaningful reading of the plaint, being Annexure - ‘A’ to this revisional application, reveals that though an averment relating to the commission of default, nuisance, annoyance etc. is pleaded, but the tenancy is stated to have been determined upon service of notice under Section 106 of the Transfer of Property Act.
Paragraph 6 of the plaint clearly suggests that upon expiration of the period given in the notice under Section 106 of the said Act, the right of the defendant to remain in the premises does not exist. The meaningful reading of the plaint also undoubtedly suggests that it is primarily a suit for recovery of possession on the ground of expiration of the period provided in the statutory notice.
Section 111(h) of the Transfer of Property Act postulates the determination of the lease on the expiration of the notice. The core issue involved in the said suit is whether the tenancy is governed by the provisions of the Transfer of Property Act or by the West Bengal Premises Tenancy Act, 1997. Pending determination of such issue the Court should not refuse the amendment treating the suit to have been filed under the provisions of the West Bengal Premises Tenancy Act, 1997.
Mr. Roy, learned advocate appearing for the petitioner, in my opinion, is not correct in saying that the Court should not allow an application for amendment. However, Mr. Roy is very much vocal in saying that such amendment is taken out after the commencement of trial.
There is no dispute in accepting the proposition of law that the suit filed after the amendment of the Code of Civil Procedure (Amendment) Act, 2002, wherein an application for amendment of the pleadings is filed after the commencement of trial, the proviso, inserted to Order VI Rule 17 of the Code, has its full applicability. The said proviso does not take away the power of the Court to allow the parties to amend the pleadings when the trial commences, but before allowing the amendment, the Court must record its satisfaction that the parties seeking amendment, though proceeded diligently but could not bring out the amendment before the commencement of the trial. It cannot be said that the application is bereft of such explanation pertaining to the due diligence, though such explanation should not be said to be absolutely free from lapses. The nature of the proposed amendment is formal and does not take away the right accrued to the defendant. The Trial Court held that such amendment is necessary and can throw light on the core issue involved in the suit, which this Court does not feel to be perverse and mala fide. The Trial Court should have compensated the defendant/petitioner by imposing costs for such delay.
This Court, therefore, modifies the impugned order to the extent that the application for amendment filed by the plaintiff/opposite party shall be treated to have been allowed subject to the payment of costs assessed at Rs. 10,000/- to be paid to the learned advocate appearing for the defendant/petitioner before this Court within a week from date.
In default of the payment of such costs within the time indicated above, the application for amendment shall be treated as dismissed and the Trial Court shall proceed with the matter in accordance with law.
If the compliance is made as indicated above and the amendment is allowed to be effected, the defendant/petitioner is permitted to file additional written statement within three weeks from the date of depositing the said costs.
With the above observations, the revisional application is disposed of.
There will be no order as to costs.
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