Shankar Das v. Shahala Iqbal And Others.

Sabyasachi Bhattacharyya, J.:— Since the matter arises from rejection of an amendment application, which was opposed in the court below only by the caveators/opposite party nos. 1 and 2, service on the other opposite parties is dispensed with.

2. The grievance of the plaintiff/petitioner is that the petitioner's application for amendment of plaint has been rejected by the trial court on two grounds; first, that there is an order of this Court for expeditious hearing of the suit, and the other that the amendment was belated.

3. However, it is argued that the proviso to Order VI Rule 17 of the Code of Civil Procedure does not apply, since the peremptory hearing of the suit has not yet started. The court below, according to the petitioner, ought to have adverted to the merits of the amendment application prior to rejection of the same.

4. The opposite parties, on the other hand, argue that the plaintiff/petitioner has been delaying the suit for an inordinate period and there has been direction for showing cause by the plaintiff for such delay. The petitioner also filed an application for injunction and lost up to this Court, as per the contention of the opposite parties.

5. In such view of the matter, learned counsel for the opposite party nos. 1 and 2 submits that the belated amendment was rightly rejected by the trial court, particularly in view of the direction for expeditious hearing of the suit passed by this Court.

6. It is seen that the trial court did not advert to the merits of the amendment application at all in rejecting the same, since there was a direction for expeditious disposal of the suit passed by this Court. Such a direction does not debar the trial court from adverting to the merits of an amendment application filed before it, although the time for disposal of the same should be expeditious, in deference to the direction given by this Court. Merely because a direction is subsisting, that does not mean that the trial court would reject a matter without adjudicating the same on merits, merely citing such direction. Moreover, learned counsel for the petitioner is right in arguing that the proviso to Order VI Rule 17 of the Code of Civil Procedure is not applicable, since the peremptory hearing of the suit has not yet started and mere delay, as is well-settled, is not a ground for not entertaining an application for amendment of the plaint.

7. In such view of the matter, the impugned order suffers from jurisdictional error.

8. Accordingly, C.O. No. 3426 of 2019 is allowed, thereby setting aside the impugned order and directing the trial court to decide and dispose of the amendment application filed by the petitioner in connection with Title Suit No. 455 of 2010, as expeditiously as possible, after giving an opportunity of hearing to both sides and without granting any unnecessary adjournment to either side, positively within December 15, 2019.

9. There will be order as to costs.

10. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance of necessary formalities.