IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O.3976 of 2024 (Assigned) Smt. Ruma Banerjee & Anr. VS. Minoti Mukherjee & Ors. For the Petitioners :Mr. Anirudha Chatterjee, Adv. Mr. Kushal Chatterjee, Adv. Mr. A.K. Acharyya, Adv. For the Opposite Party :Mr. Kumar Jyoti Tiwari, Sr. Adv. nos. 4 to 9 Mr. Pinaki Ranjan Chakraborty, Adv. Last Heard On :22.04.2025 Judgement On :29.04.2025 Bibhas Ranjan De, J. : 1. Challenge in this revision application is the order dated 09.08.2024 passed in connection with Title Suit No. 309 of 2013 wherein Ld. Civil Judge, Senior Division, Serampore rejected the prayer for amendment of written statement under 2 Order 6 Rule 17 of the Code of Civil Procedure (for short CPC) filed by the defendants/petitioners herein. 2. This Title Suit no. 309 of 2013 was filed by the opposite parties against the petitioners with a prayer for partition of the property mention in the schedule to the plaint. Defendants contested this suit by filing a written statement with counter claim contending inter alia that Shaymal Mukherjee, one of the co-sharers entered into a sale agreement with another co-sharer Samir Mukherjee in the year 1984 but before execution of sale deed Shaymal Mukherjee (plaintiff no. 7) died and Samir Mukherjee requested the wife of Shyamal Mukherjee to execute the sale deed but in the meantime Samir Mukherjee also died in the year of 2003 living behind his legal heirs i.e defendants no. 1 to 3. Ultimately, wife of Shyamal Mukherjee refused to execute the deed and filed the instant suit. 3. Defendants/petitioners herein filed one amendment application under Order 6 Rule 17 of CPC for amendment of written statement with a prayer for incorporating the facts of possession of the subject land of the agreement for sale along with an amendment of counter claim with a prayer for 3 declaration with respect to possession over the said land in terms of Section 53A of the Transfer of Property Act. 4. Ld. Counsel, Mr. Anirudha Chatterjee appearing on behalf of the defendants/petitioners has referred to paragraph 18(ix) of the written statement and submits that all the facts of agreement of sale and also part payment have been delineated in the written statement and further clarification has been made in the proposed amendment which will not change the nature and character of the suit in any manner whatsoever. 5. In support of his contention, Mr. Chatterjee has relied on the cases of MST Rukhmabai vs Lala Laxminarayan and others reported in 1959 SCC OnLine SC 9 & Prem Bakshi and others vs. Dharm Dev and others reported in (2002) 2 Supreme Court Cases 2 wherein Hon’ble Apex Court held that refusal to allow amendment of pleading in certain circumstances might result in irreparable injury to a party and overall miscarriage of justice. 6. Ld. Senior Counsel, Mr. Kumar Jyoti Tiwari appearing on behalf of the opposite parties, however, countered that the delivery of possession was not mentioned in the original written statement after execution of alleged agreement for sale 4 and from that point of view the counter claim in terms of Section 53A of the Transfer of Property Act is inescapably subject to the bar of limitation under Article 54/58 of the Limitation Act. Therefore, according to Mr. Tiwari, Ld. Judge rightly recorded his order of refusal. 7. In support of his contention, Mr. Tiwari has relied on a cases of Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and another reported in (2022) 16 SCC & Prabir Kumar Mukherjee vs. Maitrayee Mukherjee reported in 1980 (2) CLJ. 8. In Prabir Kumar Mukherjee (supra) Hon’ble Division Bench of this Court observed that the amendment application should be refused where it would introduce a totally different, new and inconsistence case and also not made in good faith and there has been unconscionable delay or gross latches without proper explanation. Whereas, in Life Insurance Corporation of India (supra) Hon’ble Apex Court suggested to allow the amendment application to avoid multiplicity of proceedings unless the same does not result in injustice to other side or withdrawal from admission or time barred claim. 5 9. Admittedly, amendment application was filed before commencement of trial. Therefore, proviso to Order 6 Rule 17 of CPC has no application in the case at hand. It is also apparent that the suit was filed with a prayer for declaration of share and partition. 10. With respect to the temporal constraints delineated under Article 54 of the Limitation Act, which prescribes the period of limitation as three (3) years for specific performance of contract and the period runs from the time fixed for the performance and in case of any prayer for declaration the claim has to be made within three years from the date when right to sue first accrues. 11. Here in the case at hand, nothing mentioned about any particular date for accrual of right to sue either in the original written statement or in the proposed amendment of the written statement. According to proposed amendment it is stated that possession of the land was handed over to the defendants/petitioners herein on the date of agreement for sale i.e on 06.10.1984. In these circumstances there is nothing on record that the alleged possession of the 6 defendants over the disputed land was ever disturbed leading to accrual of right to sue. 12. What I have discussed in earlier paragraphs clearly shows that amendment application was filed prior to commencement of trial and in a partition suit shares of the parties are to be declared in the preliminary decree after ascertaining the right of the respective parties through trial. Therefore, the proposed amendment of written statement claiming right over a particular share cannot be said to be irrelevant or unnecessary for the just decision of a partition suit. 13. Both the parties to the suit are admittedly co-sharers of the subject property and their respective share can be ascertained only through trial before declaring the same in the preliminary decree. 14. In the aforesaid view of the matter, the proposed amendment, in my humble opinion, is necessary for just decision of the partition suit pending between the parties to this revision application. 7 15. As sequel, the proposed amendment stands allowed subject to payment of cost of Rs. 10,000/- to the opposite parties herein. 16. Accordingly, the impugned order dated 09.08.2024 passed in connection with Title Suit No. 309 of 2013 stands set aside. 17. Defendants/petitioners herein are directed to file their additional written statement before the Ld. Trial Court within seven (7) days from the date of communication of this order. Plaintiffs/opposite parties are at liberty to file their reply, if any, within one (1) week thereafter. 18. Considering the long pendency of the partition suit, the Ld. Trial Judge is requested to dispose of the application as expeditiously as possible without affording any unnecessary adjournment to either of the parties. 19. With the aforesaid observation, the instant application being no. CO 3976 of 2024 stands disposed of. 20. Interim Order, if there be any, stands vacated. 21. Connected applications, if there be, also stand disposed of accordingly. 8 22. Parties to act on the server copy of this order duly downloaded from the official website of this Court. 23. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. [BIBHAS RANJAN DE, J.]