1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE Present : The Hon’ble Justice Raja Basu Chowdhury C.O. 449 of 2023 Baidyanath Das versus Bharati Das & Ors. For the petitioner : Mr. Jayanta Kumar Das Mr. Sounak Bhattacharya Ms. Madhumati Das For the Opposite Parties : Mr. Sujoy Bandyopadhyay Mr. Jagajyoti Das Mr. Subhamoy Dutta Heard on : 19.12.2025 Judgment on : 19.12.2025 Raja Basu Chowdhury, J (Oral): 1. Questioning order no. 52 dated 30th November 2022 passed by the Learned Civil Judge (Senior Division), Chanchal, Malda whereby the petitioner’s application under Order VI Rule 17 of the Code of Civil Procedure 1908 (Code) had been rejected, the instant writ petition has been filed. 2. Though, the matter had come up under the heading “for extension of interim order”, however, considering the issues involved and noting that the suit has remained stayed since 5th January 2025, this Court by consent of the parties has taken up the hearing of the revisional application itself. 2 3. The plaintiff / petitioner has filed a suit for partition and declaration in respect of two suit plots being Dag no. 517 and 518 within P.S. Kharba at present Chanchal. According to the plaintiff /petitioner the plot no. 517 comprises of 22 decimals of land as per the RS settlement record. The plaint case, however, proceeds on the premise that the plaintiff’s father Raghunath Das had 10 annas out of 16 annas interest while the father of the defendant, Bholanath Das had 4 annas interest and that one, Bidyadhar Das, their brother had 2 annas interest in the said suit property which was later transferred in favour of Bholanath Das by Bidyadhar Das. The plaint case further proceeds on the premise that the aforesaid property stands recorded in the RS settlement records. It would also transpire from paragraph 3 of the plaint that insofar as the plot no. 517 is concerned, Bholanath Das apart from having 4 annas interest had acquired 2 annas, thereby his title interest in the property was enlarged to about 6 annas. 4. Although, the plaintiff had instituted title suits in respect of the aforesaid property, since the property had not been partitioned by metes and bounds and since the oral prayer for partition was turned down, the plaintiff was constrained to institute the above partition suit. The defendant has been contesting the suit by filing written statement and has denied the statements made by the plaintiff. Subsequently, an amendment application was introduced by the plaintiff to highlight certain facts which the plaintiff felt, were necessary to morefully elucidate upon the real controversy in issue. 5. The said application was contested by the defendant, inter alia, by contending that the subject matter of the suit forms subject matter of a 3 previously instituted suit between the same parties and as such, such fact had been suppressed and accordingly, the amendment should not be allowed. This apart, it was also contended that the plaintiff was attempting to introduce the amendment to fill up the lacuna. 6. Admittedly, at that stage the trial of the suit had commenced. The plaintiff had already tendered its affidavit evidence, though, cross examination had not started. 7. The Learned Judge, however, by a cryptic order rejected the amendment application, inter alia, on the ground that the trial had commenced at the time when the amendment has been introduced. 8. Mr. Bandopadhyay, learned advocate appearing for the defendant / opposite parties has raised serious objection in allowing the revisional application. According to him, the subject matter of the amendment application stands covered by separate suits. The same is also barred by the provisions of order II Rule 2 of the Code. In support of his contention that belated amendment should not be allowed, he has placed reliance on a judgment of the Hon’ble Supreme Court in the case of Basavaraj versus Indira and others reported in (2024) 2 SCC 705. 9. Mr. Das, learned advocate appearing for the plaintiff/petitioner submits that the learned Trial Judge did not consider the amendment application at all and by a cryptic order only rejected the same. He has tried to clarify that the amendment was in fact a clarificatory one, and does not seek to change the nature and character of the suit. 10. According to him the amendment ought to be allowed and the learned judge had failed to exercise the jurisdiction. 4 11. Having heard the learned advocates appearing for the respective parties, I find that the controversy in issue between the parties revolves around two plots namely, plot nos. 517 and 518. According to the plaintiff, his father Raghunath Das had 10 annas interest out of 22 decimals of the land forming part of Dag no. 517. It is also the plaintiff’s case that the original defendant’s father had only 4 annas which was later enhanced to 6 annas upon the defendant’s father acquiring the interest of Bidyadhar Das who had 2 annas interest therein. 12. I find from the perusal of the amendment application that the plaintiff has only attempted to clarify the position and has not introduced any new case. The plot no. 517 forms subject matter of the suit, to explain the erstwhile position of RS records prior to acquisition of interest by the plaintiff has been explained. I further find it is true that the amendment application has been introduced after the trial has commenced, however, there is no specific bar for the Court under the provisions of Order VI Rule 17 of the Code to accept the amendment after a trial has commenced in the light of the proviso to Order VI Rule 17 of the Code. In the instant case, the plaintiff has only tendered his affidavit evidence. The defendant is yet to cross examine the plaintiff. Although, Mr. Bandopadhyay by placing before this Court a judgment of the Hon’ble Supreme Court in the case of Basavaraj (supra) has attempted to contend that the plaintiff ought to have proceeded with due diligence and having not done so, the amendment ought not to be allowed, however, I find that that the Learned Judge has not returned any findings that the plaintiff despite due diligence, could not place the 5 aforesaid fact before commencement of trial. The amendment has been rejected by a cryptic order. The above judgment thus does not assist the opposite parties. 13. Although, Mr. Bandyopadhyay has also raised the issue of Order II Rule 2, I am of the view that while deciding the application for amendment, there is no scope for the Learned Judge to enter into the merits of the amendment. Accordingly, such issue was also not considered. 14.Taking into consideration the fact that the amendment does not change the nature and character of the suit and is only intended to elucidate the real controversy in issue, I am of the view that the amendment ought to be allowed, though for the delay the defendant should be compensated. 15. The plaintiff is directed to file a duly affirmed copy of the amended plaint before the Learned Trial Court within 15th January 2026, subject to, however, paying cost of Rs.15,000/- to the defendants / their advocate. The defendants shall be at liberty to use an additional written statement within 30 days from the date of receipt of the amended copy of the plaint. 16. With the above direction and observation, the revisional application is disposed of. 17. All parties shall act on the basis of the server copy of this order duly downloaded from this Court’s official website. (Raja Basu Chowdhury, J.) Saswata 6 A.R. (Court)