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IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

PRESENT:

THE HON’BLE DR. JUSTICE AJOY KUMAR MUKHERJEE

C.O. 3926 of 2024

Nur Islam Gazi & anr.

Vs.

Sri Kallol Das & ors.

For the Petitioner : Mr. Animesh Paul

For the Respondent No.1 : Mr. Samim Ahmed

Mr. Ambiya Khatun

Ms. Reshma Khatun

Mr. H. Shakil

Heard on : 21.05.2026

Judgment on : 17.06.2026

Dr. Ajoy Kumar Mukherjee, J.

1. Petitioners herein are aggrieved with an order dated 5

th September

2024 passed by learned Additional District Judge, Fast Track 3

rd Court

Basirhat in T.A No. 14 of 2011. By the impugned order learned Court below

has rejected the petitioners prayer for amendment of written statement

made at the appellate stage. The plaintiff/OP no.1 herein filed a suit for

declaration and permanent injunction praying that the defendant no. 1 and

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2/petitioners herein have no legal right to enter into the schedule-mentioned

suit property or any portion thereof and/or cause obstruction and/or make

any construction over the suit properties containing total area of 09 satak

being T.S 6 of 2004. The A schedule suit property is comprising of plot no.

712/3328 under khatian no. 551 measuring 03 satak and schedule B suit

property involves khatian no. 20/206/205 and 932 in respect of same plot

no. 712/3328 measuring 06 satak.

2. The defendant no.1 and 2/petitioners herein contested the said suit

by filing written statement as well as additional written statement thereby

denying the statements made in the plaint. Their specific contention in the

additional written statement is that the recordings of the Suit properties in

the Record of Rights are erroneous.

3. Upon contested hearing learned trial court by the judgment and

decree dated 20.12.2010 dismissed the suit on contest being T.S 6 of 2004,

observing that plaintiffs prayer for declaration that the defendants have no

right to enter upon or make any construction over the suit land and also

prayer for permanent injunction against them is not tenable in the eye of

law, mainly because they are the co sharers in respect of suit plot and the

property under challenge has not been partitioned by metes and bounds till

date and therefore, the proper remedy for the plaintiff would be to institute a

suit for partition and injunction in respect of the suit plot.

4. Being aggrieved by the aforesaid order of dismissal the plaintiff

opposite party no.1 herein preferred aforesaid appeal being T.A no. 14 of

2011 before the court below and during the hearing of the said appeal the

petitioners/respondents allegedly detected that certain material subsequent

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development relating to correction of Record of Rights concerning the suit

plot needs to be brought in the written statement by way of amendment.

5. Precisely in the amendment petition, petitioner sought to incorporate

the facts of passing order in O.A no. 668 of 2006 by the West Bengal Land

Reforms and Tenancy Tribunal, (in short WBLRTT) concerning petitioner’s

prayer for correction of the RS Record of Right, which was allowed on

10.03.2006 and pursuant thereto the order passed in Miscellaneous

Proceeding no. 6 of 2006 by the Block land and Land reforms officer (in

short BL & LRO) Basirhat, by which the Record of Right was corrected,

deleting the suit khatian. However upon contested hearing, the court below

rejected the said application for amendment.

6. Being aggrieved by the impugned order learned counsel for the

petitioner/respondent submits that learned court below made a gross error

of law in entering into the merits of the proposed amendment at the stage of

consideration of the application for amendment, which is against the settled

proposition of law on the subject. He did not consider that the decision

passed by the authority in connection with the correction of Record of Rights

are very much required for proper and effective adjudication of the case, in

as much as omission thereof would lead to a decision in contrary. He also

failed to consider that the proposed amendment, even if prayed at belated

stage, was due to unintentional latches or negligence and there has been no

malafides involved and as such the same ought to have been allowed by the

court below. Therefore he prayed for setting aside the order impugned.

7. Learned counsel appearing on behalf of the opposite party opposed

the prayer contending that the petitioner herein had failed to approach this

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court or even before the court below with clean hands by deliberately not

disclosing that the correction of Records of Right which they have sought to

introduce is at present subject matter of adjudication in O.A no. 1299 of

2013. In any event, scope of interference by the Hon’ble High Court

exercising jurisdiction under Article 227 of the Constitution of India is very

limited and it should not act as an Appellate Court or Tribunal or to

reassess or review the evidence upon which the court below has passed the

order. Therefore existence of a particular plot or khatian and its

consequence in the suit, cannot be the subject matter of consideration,

while exercising jurisdiction under Article 227 of the Constitution of India.

8. The petitioner herein is not at all diligent in as much as the facts

relating to correction of Record of Rights had taken place in the year 2007,

while the suit was finally decided in the year 2010. The petitioner herein did

not even prefer any counter appeal or cross appeal against the dismissal of

the suit. Application for amendment of written statement in the present

Appeal was filed in the year 2024 i.e. after expiry of 17 years from the date

of occurrence of the fact, sought to be introduced. Therefore, the first

appellate court has rightly exercised its jurisdiction by rejecting the

application for amendment on the ground of delay as well as lack of

diligence on the part of the petitioner herein and as such it does not call for

interference by this Court.

Decision

9. From the prayer portion for amendment it is clear that

petitioner/respondent wants to incorporate in the written statement by way

of amendment the fact that the petitioner initiated O.A. no 6686 of 2006

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before WBLRTT for correction of L.R. Khatian in Connection with 33 satak of

land over suit plot no. 712/3328 and in view of an order passed by the

Tribunal dated 10.03.2006 petitioner brought Misc. Case no. 6/2006 before

BL & LRO, Basirhat1 where different orders were passed from 26.06.2006 to

22.01.2007 and thereby the entry in connection with plot no. 712/3328 was

held to be erroneous and accordingly LR Khatian has been prepared in the

name of petitioner and his brother, being LR Khatian No.

3600,2709,2710,2711. Petitioners further sought to incorporate by way of

amendment that as per enquiry report mentioned in the order sheet, heirs of

Sudhasnghsu Sekhar Chouwdhury have no possession in LR Khatian No.

740,.790,1142 and said plot are been possessed by petitioners and they are

possessing plot no. 712/3333, 712/3335/718/3338 and 718/3339 in place

of Suit plot no. 712/3328. Petitioners LR khaitan no. 3600 has been

wrongly recorded in the name of one Manik Goldar as permissive occupier,

though no such person ever Possessed the said property.

10. During the course of hearing, opposite party herein has not denied

about the proceeding being OA 668/2006 and also order passed in

connection with Misc. Case 6/2006 but their contention is that the

petitioners were not diligent to incorporate the same in pleading, inspite of

the fact that such orders were passed during the pendency of the suit and

secondly the correction of Record of Rights, which they have sought to

introduce is subject matter of adjudication in OA no. 1299 of 2013.

11. It further appears from the impugned order that the court below

rejected the petitioners prayer for amendment on the following grounds:

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(i) petitioners have not preferred any cross appeal or cross

objection raising the particular defence to meet the

ground of appeal but they simply supported the impugned

judgment and decree and therefore the question of

entertaining any fresh question of fact and law does not

arise

(ii) the proceeding before the WBLRTT has been disposed of

on 10.03.2006 and the proceedings before the BLLRO

Basirhat was disposed of on 22.01.2007, whereas the

impugned judgment and decree by the trial court was

recorded on 20.12.2010, so the respondent could have

brought the proposed amendment before the Trial Court

much before pronouncing the impugned judgment, which

they did not do and their excuse that they are illiterate

and poor are not sustainable in the eye of law

(iii) the proposed amendment has been sought for as an

additional ground to show that the entry in the RS Record

of Right is wrong, erroneous baseless as was held in the

said two proceedings but finding of the said two

proceedings being passed in quasi-judicial proceedings

are not binding upon the civil Court, who has been asked

to investigate the title of the parties to the suit.

(iv) Record of rights does not create or extinguish title and

therefore subsequent correction in the record of right as

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claimed by the respondent would have no effect in the

shares recorded in their title deeds.

(v) the nature of suit plot is HUT (market place) and so they

have only rent receiving interest from the hawkers and

therefore they would have no specific possession in

respect of any particular portion of the suit plot and

therefore even if any subsequent correction has been

made in the record of rights, they are not essential facts

to determine the real controversy between the parties.

(vi) if the proposed amendment is allowed it would have effect

of reopening of trial because the appellant is to give

further evidence to meet the proposed amended facts.

12. It is undoubtedly true that the trial court passed judgment dismissing

the suit on 20.12.2010 and subject matter of the amendment sought to be

incorporated in the written statement was passed in 2007. Therefore

appellant/plaintiff/opposite party herein strenuously argued that such

prayer is barred under the proviso to Order VI Rule 17 of Code of civil

procedure (in short CPC) which states

‘provided that no application for amendment shall be allowed after the trial

has commenced, unless the court comes to the conclusion that inspite of due

diligence the party could have raised the matter before the commencement of

trial.’

13. Now Order VI Rule 17 envisages amendment of pleadings which states

that the court may at any stage of the proceedings allow either party to alter

or amend his pleadings in such manner and on such terms as may be just

and all such amendments shall be made as may be necessary for the

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purpose of determining the real questions in controversy between the

parties. Therefore granting of amendment on such term is also a condition

for the purpose of determining the real question in controversy between the

parties.

14. In Mahila Ram Kali Devi and Ors. Vs. Nandaram reported in (2015) 13

SCC 132 Supreme Court has observed as follows:-

20. It is well settled that rules of procedure are intended to be a handmaid

to the administration of justice. A party cannot be refused just relief merely

because of some mistake, negligence, inadvertence or even infraction of

rules of procedure. The court always gives relief to amend the pleading of

the party, unless it is satisfied that the party applying was acting mala fide

or that by his blunder he had caused injury to his opponent which cannot be

compensated for by an order of cost.

15. It is also well settled in view of judgment pronounced in North

Eastern Railway Administration Gorakhpur, Vs. Bhagwan Das reported

in (2008) 8 SCC 511, that amendments ought to be allowed, which satisfy

two conditions. Relevant paragraph may be reproduced below:-

16. Insofar as the principles which govern the question of granting or

disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant

time) are concerned, these are also well settled. Order 6 Rule 17 CPC

postulates amendment of pleadings at any stage of the proceedings.

In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil [AIR 1957 SC 363]

which still holds the field, it was held that all amendments ought to be allowed

which satisfy the two conditions: (a) of not working injustice to the other side,

and (b) of being necessary for the purpose of determining the real questions in

controversy between the parties. Amendments should be refused only where

the other party cannot be placed in the same position as if the pleading had

been originally correct, but the amendment would cause him an injury which

could not be compensated in costs.

16. Apex Court further in case of Mrs. Revajeetu Builders and

developers Vs. Mrs. Narayanswammy and Sons and Ors. , (2009) 10

SCC 84 has laid down certain factors which would be taken into

consideration while dealing with applications for amendment

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63. On critically analysing both the English and Indian cases, some basic

principles emerge which ought to be taken into consideration while allowing or

rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective

adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which

cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple

litigation;

(5) whether the proposed amendment constitutionally or fundamentally

changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the

amended claims would be barred by limitation on the date of application.

17. Therefore, the first question that needs to be addressed is whether

proposed amendment is imperative for proper and effective adjudication of

the case. Learned Court below while dealt with the issue observed that entry

in Record of Rights does not create title, so proposed amendment is not

necessary to declare the share of the parties and since the suit property is a

market place (HUT), there cannot be any specific possession by either party

in any specific portion of the property.

18. On a bare perusal of prayers made in the plaint, it appears that

opposite party herein/appellants’ suit is for declaration that petitioners have

no right to enter into the property or any portion thereof and to cause any

obstruction and/or making any construction over the property mentioned in

Schedule A and B to the plaint. Therefore it is not correct to say that since

property in question is market place (HUT) so there cannot be specific

possession in respect of specific portion of the property. Moreover, in prayer

(b) of the plaint plaintiff specifically prayed for permanent injunction

restraining the petitioners from entering into the suit property described, in

the schedules to the plaint. Therefore the trial courts observation that

proposed amendment concerning correction in records of rights would have

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no bearing for the adjudication of the suit is uncalled for. Entry in record of

rights has an impact over the issue of possession and as a corollary issue of

determination for granting permanent injunction, which relates to

possession of the property by the parties.

19. The next factor to be taken into consideration is whether the

application for amendment is bonafide or malafide. It is no body’s case that

the prayer for amendment is malafide, since it basically pertains to order

passed by appropriate authorities, which relates to the revision of Record of

Rights.

20. To deal with the two other factors namely whether amendment would

cause such prejudice to other side which cannot be compensated by money

and /or refusing amendment would lead to multiple litigation, it appears

that the proposed amendment seeks incorporation of subsequent

development that took place after filing the suit, concerning correction of the

Record of Rights in respect of the suit property by the competent authority

under section 50 of the West Bengal Land Reform Act, 1955, (in short Act of

1955) pursuant to orders passed by the Tribunal as well as consequent

deletion of khatian no. 551,20206,205 and 932 in connection with plot no.

712/3328. These developments may have an impact upon the identity and

existence of the very suit properties forming subject matter of the lis and

therefore, are material and necessary for effective adjudication of the

disputes between the parties. It is highly probable that if such subsequent

event are not brought on record, the court may proceed on an outdated

factual foundation and may ultimately pass a decree relating to khatian

entries, which no longer exists in the Records of Rights and as a result if

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any decree is passed that may have become incapable for proper execution

and may lead to multiplicity of proceedings.

21. The other question raised is proposed amendment if allowed will

constitutionally and fundamentally change the nature of the suit. In the

instant case the petitioners had already pleaded in the additional written

statement that the entries in the record of rights are erroneous. The

proposed amendment if allowed will merely elaborate and substantiate the

said existing defence by bringing on record subsequent statutory corrections

made by competent authorities. Therefore, proposed amendment, if allowed,

will neither introduce any new case nor would amount to withdrawal of any

admission nor would change the nature and character of the suit.

22. The court below while decided the issue wrongly held that since

petitioner has not preferred any cross appeal or cross objection raising the

particular defence to meet the ground of appeal, so the question of

entertaining any fresh question of fact and law does not arise. In this

context it is needless to say that the right to seek amendment of pleadings is

not dependent upon filing of cross objections. Furthermore, the court below

i.e. first appellate court being the final court on facts possesses ample

jurisdiction to permit amendments necessary for effective adjudication, even

if such amendment may require adducing further evidence. Under no

circumstance, it can be said that the proposed amendment if allowed, would

introduce any new case but it merely seeks to incorporate subsequent

development that took place after filing the suit, affecting the very existence

of suit property itself.

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23. Court below further erred in law in holding that the proposed

amendment has been sought as an additional ground to show that the entry

in the Record of Rights is erroneous as held in the said proceedings but

findings of the said proceedings being of quasi-judicial proceedings are not

binding upon the civil court who has been asked to investigate the title of

the parties to the suit

24. In this context learned court below failed to appreciate that the

proposed amendment is not an additional ground in as much as the

petitioners had already pleaded in the written statement that the entries in

the Record of Rights are erroneous. As I have stated above that the proposed

amendment merely seeks to elaborate and substantiate the said existing

defence by brining on record subsequent statutory developments relating to

correction of the Record of rights and/or deletion of the suit khatian by the

competent statutory authorities. The court below further failed to appreciate

that the proposed amendment relates to correction made in the Record of

Rights by the competent authority under section 50 of the Act of 1955

pursuant to orders passed by WBLRTT. The findings and the order passed

by the WBLRTT and the BLLRO are very much binding upon the civil court

in matters relating to preparation, correction and adjudication of records of

rights. In the instant case it may be noted that by the proposed amendment,

the defendant has not sought for any additional defence in the written

statement. The defence remains as it was before even after proposed

amendment. The subsequent correction in the Record of Rights, during

pendency of the suit required to be included to adjudicate the matter

completely, as it may have certain impact over the main reliefs sought for.

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The proposed amendment, if allowed would not prejudice the opposite

party/plaintiff if he will get the chance of filing rejoinder.

25. It also needs to be mentioned that it is well settled that at the stage of

considering prayer for amendment of pleadings, the court is not required to

adjudicate correctness, truthfulness or ultimate effect of the proposed

amendment in the pleading. The only consideration under Order VI Rule 17

is whether the proposed amendment is necessary for determining the real

question between the parties. The subsequent statutory correction made by

competent authorities may have a direct effect in respect of the identity of

suit property and existence of suit khatians and therefore necessary for

proper and effective adjudication of the disputes involved in the lis.

26. One of the main reason for rejection of prayer for amendment by the

court below, as reflected in the impugned order is that if the proposed

amendment is allowed it would have the effect of re-opening trial because

appellant will have to give further evidence and for which application for

amendment cannot be allowed. Such observation is based on perverse

finding in view of the fact that even if additional evidence becomes

necessary, amendment ought to be allowed if it facilitate complete

adjudication and to avoid multiplicity of proceedings. In the instant case the

proposed documents if required to be proved in view of amendment, are all

public documents arising out of statutory proceeding conducted in presence

of the plaintiff/opposite party and therefore no irreparable prejudice would

be caused to the opposite party herein if the proposed amendment is

allowed. Therefore, if situation demands appellate court can also take

additional evidence under Order XLI Rule 27 in respect of public documents,

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since it may enable to pronounce judgment or for any other substantial

cause.

27. However, lastly one question still remains which needs to be answered

i.e. when proposed prayer for amendment has been made at a belated stage

at the time of hearing appeal and when the fact of passing the order relating

to correction of record of rights took place during the pendency of the suit

and much before delivery of judgement, whether amendment at appellate

can be allowed in view of restriction laid down in the proviso to order VI rule

17 of CPC.

28. It is well settled that delay by itself cannot be a ground to refuse

amendment, if proposed amendment is necessary for determining the real

controversy between the parties, specially in order to adjudicate the issue of

permanent injunction. It is equally well settled that procedural law is

intended to advance the cause of justice and not to defeat substantive right

on technical grounds. Furthermore, documents referred herein are all public

document meaning thereby that public in general have access to orders

passed in such proceeding and correction in Record of Rights allegedly

made. Opposite party herein has not taken the plea during the hearing that

they were not aware about such recording, rather their specific case is that

the correction of record of right which they have sought to introduce is

subject matter of adjudication in OA 1299/2013. Therefore,

plaintiff/appellant/opposite party herein being the master of the suit, who

advanced his case by making prayer for injunction connection with the suit

property, and which was subsequently got revised in an appropriate

proceeding, was definitely under legal obligation to bring before the court

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the latest entry in record of rights, as well as exceptions taken therein by

them, as in the event of declaration of title and permanent injunction, such

correction would have a direct impact upon the identity of the suit property.

Therefore, I am of the view that without making any effort to make

necessary assertion regarding correction in the Record of Rights concerning

suit property in the plaint, inspite of knowledge, the plaintiff/opposite party

cannot now take advantage of his own wrong by raising a technical issue

against prayer for amendment by saying that it has been filed 17 years after

passing the concerned order. Therefore, even if proposed amendment has

been filed at a much belated stage, which appears to have direct nexus with

the issue in controversy, it is required to be allowed to adjudicate the matter

completely once for all and to subserve the ends of justice.

29. Before conclude I also want to remind that amendment of a plaint

and amendment of a written statement are not necessarily governed by

exactly the same principle. It is well settled that though it is true that some

general principles are certainly common to both but the rules that the

plaintiff cannot be allowed to amend his pleadings, so as to alter materially

or substitute his cause of action or the nature of his claim has necessarily

no counterpart in the law relating to amendment of the written statement.

This is also because a new ground of defence or substituting or altering a

defence does not raise the same problem as adding altering or substituting a

new cause of action and therefore the courts are inclined to be more liberal

in allowing amendment of the written statement than of plaint and question

of prejudice is less likely to operate with same rigour in the former than in

the latter case. In this context reliance has been placed upon the judgement

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passed in Baldev Singh and Ors. Vs. Manohar Singh and Anr. reported

in (2006) 6 SCC 498, and Sushil Kumar Jain Vs. Manoj Kumar and Anr .

reported in AIR 2009 SC 2544.

30. Considering all the above mentioned facts and circumstances of the

case CO 3926 of 2024 is allowed.

31. Petitioners prayer for amendment of written statement is allowed

subject to payment of cost of rupees of 1,000/- to the Calcutta High Court

Legal Services Authority, within a period of four weeks from the date of

communications of this order. In the event of amendment of written

statement, the court below will give an opportunity to file rejoinder by the

opposite party herein/appellant and thereafter he will proceed to dispose of

the appeal at the earliest, without being influenced by any observation made

herein.

Urgent photostat certified copy of this order, if applied for, be supplied to the

parties, on priority basis on compliance of all usual formalities.

(Dr. AJOY KUMAR MUKHERJEE, J.)