Kiran Raj

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The Calcutta High Court has set aside an order permitting an amendment in a civil suit that sought to introduce a claim for recovery of possession and damages, holding that the proposed changes would fundamentally alter the nature and character of the case. Justice Chaitali Chatterjee Das, presiding over the matter, observed that "an amendment which introduces a new case beyond the scope of the original pleadings cannot be allowed, particularly when it results in a substantive change in the nature of the suit."

The dispute pertained to a shop room situated at 158, Lenin Sarani, Kolkata, which was originally a part of a partnership business named Pioneer Engineering Company. The court noted that the plaintiff’s amendment sought to recover possession from a defendant who had purchased the property during the pendency of the suit. It recorded that "the proposed amendment would change the entire nature and character of the suit," thereby warranting judicial intervention.

The dispute stemmed from a title suit filed in 1987 concerning the ownership and rights over a shop room. The plaintiff had initially sought a declaration regarding the status of a business named M/s. Harmonics, asserting that it was part of the partnership firm, Pioneer Engineering Company, in which the plaintiff had a 5% share. The plaintiff further claimed rights over the profits, losses, and assets of the firm, which had allegedly dissolved in 1986.

During the course of the litigation, the defendants purchased the disputed shop room through a registered deed of conveyance. Upon learning of the ongoing case, they applied under Order 1 Rule 10(2) of the Code of Civil Procedure (CPC) to be added as defendants, which was allowed by the trial court in 2005.

Subsequently, the plaintiff sought an amendment under Order VI Rule 17 of the CPC, introducing a prayer for recovery of possession and damages, claiming that the defendants were trespassers. The trial court permitted the amendment on November 14, 2014, stating that "the amendment will not change the nature and character of the suit, and it is necessary for the interest of justice and fair play."

Challenging this order, the defendants approached the High Court, arguing that the amendment fundamentally changed the nature of the suit and prejudiced their rights.

The High Court extensively examined the governing principles for granting amendments under Order VI Rule 17, relying on the Supreme Court’s decision in Revajeetu Builders and Developers v. Narayan Swami & Others (2009) 10 SCC 84. It noted that an amendment should be allowed only if it is necessary for proper adjudication and does not introduce an entirely new case.

The court recorded: "The proposed amendment sought to recover possession of the property from the defendants, who had purchased it through a registered sale deed during the pendency of the suit. The amendment, therefore, altered the fundamental character of the suit from one seeking a declaration of partnership rights to a suit for recovery of possession."

It further observed that "the trial court’s order allowing the amendment failed to consider whether the plaintiff had the right to seek recovery of possession, given that no such relief was originally sought in the plaint." The court stated that any amendment that "deprives the opposite party of a valuable right accrued by lapse of time or alters the nature of the dispute entirely should not be entertained."

The court also referred to Gurudial Singh v. Raj Kumar Aneja (2002) 2 SCC 445, wherein the Supreme Court had held that an amendment which introduces a new claim beyond the original pleadings must be scrutinized carefully to ensure it does not prejudice the rights of the other party.

In setting aside the trial court’s order, the High Court held that the amendment could not be permitted in its current form. However, it granted the plaintiff liberty to file a fresh application for amendment, provided it did not change the nature and character of the suit.

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The court concluded: "Accordingly, the instant revisional application stands allowed. The order passed by the Learned Judge, Bench XIII of the City Civil Court, Calcutta, on November 14, 2014, is set aside. Liberty is, however, given to the Opposite Party to take out an appropriate application for amendment if at all necessary, as a consequence of the addition of the present petitioner as a defendant, without changing the nature and character of the suit."

Advocates Representing the Parties

For the petitioners: Mr. Dhiraj Trivedi, Mr. Bikash Kr. Singh, Advocates

For the opposite party: Mr. Kasinath De, Advocate

Case Title: Dipak Kumar Shaw & Ors. v. Smt. Uma Shaw & Ors.
Case Number: C.O. No. 256 of 2015
Bench: Justice Chaitali Chatterjee Das

[Read/Download order]