Calcutta High Court (Appellete Side)
Winsher Tie-Up Private Ltd. And Another vs M/S. Gtr Company Private Ltd. And Others on 10 April, 2026
Author: Shampa Sarkar
Bench: Shampa Sarkar
2026:CHC-AS:597
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Shampa Sarkar
CO 307 of 2021
Winsher Tie-Up Private Ltd. and another
vs.
M/s. GTR Company Private Ltd. and others
For the Petitioner : Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Aniruddha Chatterjee, Sr. Adv.
Ms. Noelle Banerjee, Adv.
Mr. Arnab Sardar, Adv.
Mr. Vivek Murarka, Adv.
For the Howrah Municipal : Mr. Saptanshu Basu, Sr. Adv.
Corporation. Mr. Kaushik Dey, Adv.
Mr. Soumyajit Mishra, Adv.
Judgment reserved on : 27.03.2026
Judgment pronounced on : 10.04.2026
Judgment uploaded on : 10.04.2026
Shampa Sarkar J.:-
1.
The petitioners are the defendant Nos.1 and 2 in Title Suit No. 658 of
2020. The said title suit is pending before the learned Civil Judge(Senior
Division) 2nd Court at Barasat.
2. The opposite party No.1 as plaintiff filed the said suit for recovery of
possession and permanent injunction under Section 6 of the Specific
Relief Act, 1963. The hearing of the application for temporary injunction
was fixed on January 28, 2021. The plaintiff/opposite party No.1 filed
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four applications. By three different applications, the plaintiff prayed for
amendment of the plaint, the injunction application and the application
for local inspection. The fourth application was for deferring the hearing
of the injunction application till the disposal of the amendment
application. By order dated January 28, 2021, the hearing of the
injunction application was deferred. The ad-interim order of injunction
was vacated as the learned court was of the opinion as the ad interim
order was passed in respect of a property which was allegedly incorrect,
the ad interim order did not deserve to be extended.
3. The applications for amendment came up for hearing on February 1,
2021, when the learned trial judge allowed the said applications, thereby,
permitting the plaintiff to amend the plaint, the injunction application
and also the application for local inspection. Aggrieved by the
aforementioned order, the petitioners preferred this revisional
application.
4. Mr. Surajit Nath Mitra, learned Senior Advocate had assailed the order
on various grounds. It was contended by Mr. Mitra that, the suit was for
recovery of possession. In the said suit, the pleadings with regard to the
area under the possession of the plaintiff being the staff quarters of their
workers, and the area from which the workers were dispossessed, had
not been clearly mentioned. The pleadings were insufficient, devoid of
merits and lacking in material particulars. Taking the court through
several paragraphs of the said plaint, Mr. Mitra submitted that vague and
stray allegations were made with regard to the alleged dispossession. On
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the one hand, the plaintiff stated that staff quarters had been erected on
the south west corner of the land measuring 10 acres at 37, Dumdum
Road, whereas in the other paragraphs, a contrary stand was taken, to
the effect that, the dispossession took place from the said plot, when the
defendants had built a wall on the western side of the premises adjacent
to the staff quarters. The averments in paragraph 12 of the plaint were
vague, confusing and lacked clarity. The plaintiffs spoke about four big
ponds over ten acres of land and also mentioned the presence of a factory
operating therefrom. Mention had been made of other ponds in the
western and the northern side of the factory area. Allegation was made
that, by constructing a 30 feet wide road, the factory shed was
intersected. The allegation that, on the night of December 14, 2020, the
defendants assembled with JCB machines and demolished the staff
quarters and thereafter, started erecting a brick-built boundary wall
thereby enclosing the demolished area, lacked specifications. The plaintiff
averred that the staff quarters were situated in the southwest corner, but
on the other hand the allegation was that the demolition was effected in
order to raise a wall on the eastern part of the demolished portion. Such
averments, if read together, would indicate that the plaint case was
nothing but a concocted story. The plaintiff was never in possession of
the area over which the defendants had constructed the wall and as such
the suit was bound to fail.
5. It was next contended that, on the basis of ambigious pleadings, the suit
property was described at page 12 of the plaint. Learned senior Advocate
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submitted that, as the plaint case was a false and fabricated story, the
schedule was equally confusing and vague. The prayer for amendment of
the schedule gave rise to a definite conclusion that, the plaintiff was
completely unsure about its own case. The schedule as was originally
mentioned in the plaint and subsequently sought to be amended were
indefinite.
6. Neither the original description of the suit property nor the subsequent
description which was sought to be incorporated in the plaint by
amending the alleged schedule, afforded any clarity as to the portion
from which the plaintiff alleged dispossession. Mr. Mitra thus submitted
that, the learned court erred in holding that the amendment was formal
in nature and was not inconsistent with the pleadings. The learned court
also erred in holding that, the amendment would not change the nature
and character of the suit. The finding of the trial court that, even if there
was vagueness in the schedule, the appropriate stage for deciding the
merits of the plaint case would be at the final hearing of the suit and not
at the stage of allowing an amendment, was wholly erroneous.
7. Mr. Mitra submitted that reliance on the decisions of the Hon’ble
Supreme Court were misplaced as those decisions would not apply to
the facts of the present case. Amendments must be allowed in order to
bring on record facts which were germane for adjudicating the real
controversy between the parties. In the present case, the controversy
between the parties did not find any definite expression in the plaint
case. The plaint, read as a whole, would lead a reasonable man to arrive
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at a conclusion that the same did not disclose any cause of action. The
pleadings were erratic, conflicting and obscure. Even if the amendment
of the schedule was allowed, the description of the property would
remain inconclusive. The schedule would not match with the averments
at paragraphs 11,12,13,14,15 and 18 of the plaint. Without determining
as to whether the amendment was bona fide and would be necessary for
adjudication of the real controversy between the parties, the learned trial
court mechanically allowed the amendment, six months after the accrual
of the cause of action. The learned court failed to appreciate that a
person who claimed dispossession, should at least be aware of the area
from which he was dispossessed. The suit was based on possession and
consequent dispossession. The subject matter of the suit was
dispossession from a portion over which the workers of the plaintiff were
in settled possession. The plaintiff ought to have been able to identify the
portion before filing the suit. Suddenly, after six months from filing of
the suit, the plaintiff could not have changed its mind, inter alia, seeking
to incorporate a different portion of the land as the area from which the
plaintiff was dispossessed. Such uncertainty demonstrated that the suit
was a speculative one. There was no dispossession at all, and gradually
the plaintiff was seeking to alter the plaint case, being sure that the suit
would fail.
8. Mr. Mitra relied on the following decisions:-
(a) P.Sivan and Ors. Vs P. Shantha and Ors., decided in C.O. No.- 026
of 2018, reported in Manu/WB/0063/2019.
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(b) Baldev Singh and Others vs Manohar Singh and Another,
reported in (2006) 6 SCC 498.
(c) Revajeetu Builders and Developers vs Narayana swami and sons
and others reported in (2009) 10 SCC 84.
9. The above decisions were relied upon in support of the following
contentions:-
(a) Inconsistent averments were being sought to be introduced by
amending the description of the suit property, which was not permitted
in law.
(b) The plaintiff should have had the knowledge of the portion that was
in its possession as staff quarters, and the portion from which the
alleged dispossession took place should be definite. There was no room
for speculation.
(c) Inconsistent defences could be raised in a written statement, but in
case of a plaint, inconsistent averments could not be made.
(d) An amendment should be bonafide and necessary for proper
adjudication of the disputes, which was not the case in the present suit.
10. Mr. Saptansu Basu, learned Senior Advocate for the opposite party
No.1/ plaintiff submitted that the learned court neither acted illegally
nor with material irregularity in allowing the amendments. Trial had not
commenced. The application for injunction had not been heard. The
application for local inspection was pending. At that juncture the prayer
for amendment was made.
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11. The contention of Mr. Mitra that, the amendment was brought in at a
belated stage, that is, after six months from the date when the cause of
action arose, was not tenable in law.
12. It was next contended by Mr. Basu that, instead of the word ‘schedule’,
the property was described under the head “suit property”. Incorporation
of the expression ‘schedule’ in place of ‘suit property’ was a formal
correction. The mistake was bona fide and the rectification was rightly
allowed. It was further contended that, the merits of the amendment
were not required to be looked into at the stage of disposing of an
amendment application. The amendment was necessary to correct the
mis-description of the property in the schedule and an obvious
miscalculation. The plaintiff claimed to have been dispossessed from a
particular area. This was sought to be correctly described by the
amendment, upon detection of the mis-description. He referred to
various averments in the plaint in order to substantiate the cause of
action in filing the suit and the background of the dispute between the
parties, which ultimately led to the filing of the suit.
13. The expression “an area within the boundary wall of the factory
measuring about 5000 sq. ft. (115×35 sq. ft.) on the south west portion,
presently demolished”, suffered from certain incorrect information. The
area of 5000 sq. ft. was an obvious miscalculation (115×35 sq. ft., would
be 4025 sq. ft.). This was sought to be corrected. Secondly, the proper
depiction of the area from which the plaintiff was dispossessed was
required to be incorporated as the original expression and/or description
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was incorrect. The schedule should be read as, “all that piece of parcel of
staff quarter measuring about 5040 sq. ft. on the south west corner and
adjacent to the Dumdum road and measuring about 4025 sq. ft. (115×35
sq. ft.) on the south west portion within the factory boundary wall”.
14. Further, in the 10th line of the said description, the expression “attached
hereto” was sought to be deleted in order to incorporate the sketch map
within the schedule itself. The sketch map was mentioned, but
inadvertently not attached to the plaint. Such amendments could not be
termed as either changing the nature and character of the suit or
incorporating conflicting claims. The plaint case clearly mentioned that
the factory premises was situated in the south west corner of the 10
acres of land, comprising of factory shed, structure and four big ponds.
The staff quarters was the subject-matter of the suit for recovery of
possession, which was allegedly demolished. The defendants tried to fill
up the ponds and started raising a wall on the western side of the
premises, just adjacent to the staff quarters.
15. Moreover, the contentions of the plaintiff that the defendants used JCB
machines to bulldoze the staff quarters in order to access the Dumdum
road by constructing a 30 ft. wide passage, was consistent with the
averments in the plaint. The plaint case was that the defendants raised a
high wall on the western side of the factory premises, which was towards
the eastern side of the demolished portion. In any event, such issues
were subject to proof. The correction of the description of the area from
which the plaintiff was dispossessed, was justifiably allowed at the very
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initial stage of the suit, for the ends of justice. The amendments sought
to be incorporated were bona fide and necessary for adjudication of the
disputes between the parties. Any mistake or mis-description of the suit
property could always be corrected.
16. Mr. Basu relied upon following decisions:-
(a) Munsilal Rai vs Amar Nath Sen and Anr. reported in 2015 SCC
Online Cal 10586
(b) Mansoor Alam vs Dr. Maqsood Alam and Anr. decided in C.O. No.
959 of 2022.
(c) Mr Arvind P. Shah and Ors. vs Mussamat Zohra Hasani
Vadnagarwala and Ors. reported in 2016 SCC Online Cal 1511.
17. Having heard the learned Advocates for the respective parties, this court
finds that the application for amendment of the plaint, the injunction
application and the application for local inspection were filed before the
disposal of the application for injunction. The ad-interim order of status
quo was vacated by the learned trial judge by order dated January 28,
2021 as the trial court was of the view that the ad interim order of status
quo was passed admittedly on an incorrect description of the suit
property and should not be extended. Thus, the suit was at a
preliminary stage. The amendment was neither time barred nor was
such prayer for amendment hit by the proviso to Order 6 Rule 17 of the
Code of Civil Procedure. Moreover, the ad-interim order was vacated.
Thus, no advantage on account of such mis-description had been
obtained by the plaintiff.
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18. Initilly, the suit property was described as hereunder:
“Suit Property
All that a piece of Staff Quarter measuring about 5040 Sq.ft &
area within the boundary wall of the factory measuring about
5000 sq.ft (115×35) ft. on the South west portion(presently
demolished) out of the entire 10 acres of land being premises
No. 37 Dum Dum Road, being Municipal Holding No. 162 (old
142), Dum Dum Road, Cossipore Road appertaining Dag Nos.
738 739 741 744 & 748 of Khatian Nos. 921 922 & 923
respectively in Mouja Purba Sinthee, J.L. No. 22, Touzi No.
1298/2833 in P.S. Dum Dum, District North 24 Parganas
specifically described in the rough sketch map attached hereto
which shall form part of the plaint.”
19. The incorrect caption was sought to be amended by incorporation of the
expression ‘schedule’. This was a formal correction and should be
allowed.
20. The schedule of the amendment is quoted hereunder:-
“SCHEDULE OF AMENDMENT
1. At page 12 of the plaint after prayer portion the Suit property be
replaced by Schedule (Suit Property)
2. In the second line of the suit property the word starting from “&
ending demolished) be deleted and in its place following be
inserted ” on the south West corner and adjacent to Dum Dum
Road and area measuring 4025 sq.ft. (115×35 feet) on the south
west portion within the factory boundary wall”
3. In 10th line of the Schedule the word starting from attached to
the end be deleted and in its place the following be inserted
herein below.”
21. The amended schedule indicates that the plaintiff wanted to incorporate
the correct description of the portion from which dispossession was
made and also rectify the miscalculation. The plaintiff wanted to depict
that the staff quarters measuring about 5040 sq. ft. on the south west
corner and adjacent to Dumdum Road and area measuring 4025 sq. ft.
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(115×35 sq. ft.) on the south west portion within the factory boundary
wall had been demolished.
22. According to the plaintiff, the original schedule suffered from a mistake.
The area was miscalculated (115×35 sq. ft.) and the fact that the said
area was within the south west corner adjacent to Dumdum road within
the south west portion of the factory boundary wall was sought to be
incorporated to give a proper identification and definiteness to the
portion of the premises from which dispossession had been alleged.
Such incorporation of the facts align with the pleadings, but the
correctness thereof shall be subject to proof in the suit.
23. The relevant portions of the plaint are quoted below, which will
demonstrate that the amendments were not inconsistent with the plaint
case. No new cause of action was introduced. No inconsistent pleadings
were being introduced and no admissions were being withdrawn.
“1. That the plaintiff is a company incorporated under the
Companies Act, 1956. The company was first set up at Howrah
sometime in the year 1922 under the reign under British India
and afterwards the same was shifted to 37 Dum Dum Road,
P.S. Dum Dum, Kolkata- 700 037 in the year 1935 and since
such time the plaintiff company have been running its
manufacturing business over the vast land measuring about 10
acres without any break to the knowledge of the rest of the
world.
###
4. That in order to meet the demand of the Indian Railway in time
the plaintiffs have employed huge workers and arranged one
workers shed within the factory site where the workers coming
outside the state are staying inside the factory premises for
whose accommodation the plaintiff had erected a staff / family
quarter on the South west corner of the aforesaid 10 acres of
land comprising factory shed, structures, as many as four big
ponds. The said Staff Quarter is the subject matter of the suit
hereinafter referred to as the suit premises.
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5. That sometime in the year 2017 some persons having vested
interest were trying to fill up the big ponds with earth in order
to make several multistoried buildings for which the plaintiff
made complaint before several authorities including the
competent authority of West Bengal Inland Fisheries Act, 1984
and South Dum Dum Municipality. Upon physical inspection
report was submitted wherein it was reported that the pukur
was being filled up by earth with JCB machine.
###
11. That pertinent it to mention that the factory shed of the plaintiff
is situated at the southern part of the vast land just adjacent
north to the Dum Dum road. There were as many as four big
ponds within the 10 acres of land. Out of said 10 acres the
plaintiff’s factory are being run in specific land measuring 04
acres within which one of the four ponds are lying. Out of other
three ponds one is on the western side of the ponds falling with
the factory area while other two are lying on the North of the
plaintiff’s factory area. Which is the back side of the factory. In
order to make huge construction over the property the
defendants since past few years are trying to fill up the pond
standing on the west of the pond inside the factory area despite
vehement protest by the neighboring people. Numerous mass
petition as well as representation by the plaintiff failed to bring
any positive result whereby the rampant filling up the pond
could be arrested. Due to stoic inaction on the part of the
administration the defendants with recharged enthusiasm have
been able to convert the major portion of the pond into solid
land. Being successful in such illegal conversion of the pond
into solid land the defendants since past few months are trying
to make an inroads to connect the land to the back of the
factory by breaking the boundary wall of the plaintiff and to
that effect they are openly holding out that said boundary wall
has been made on their land, although the said boundary wall
was made long before the birth of the defendants.
12. That the defendants along with their associates at their back
and call came in front of the proceedings land and asked the
plaintiff’s staff to vacate the staff quarter so as to allow them to
make construction of a pucca of 30 feet wide road intersecting
the factory shed as the same is lying within their purchased
land. The plaintiff’s personnel politely told them that it would
be better for the defendants to seek appropriate relief from the
court of law and they should not do anything unlawful as
during this long period of several decades the plaintiff’s factory
is carrying on its business with unimpeachable goodwill where
numerous workers are earning their livelihood basing upon the
age old factory. Before leaving the place the defendants made it
unequivocally clear that they were not so fool to take the
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protracted legal route rather they would take drastic steps
within a short period by force.
18. That sometime in the middle part of November, 2020 some
unknown persons under guidance of one Suman Mitra alias
Santu a known shop owner of two wheeler repairing job were
found assembling regularly in front of the staff/ family quarter
on the south western corner of the company premises and they
were heard saying that they would dismantle and demolish the
said staff quarter and illegally encroach upon the company
premises. In no time the plaintiff lodge complaint with the Dum
Dum Police station on 24.11.2020 requesting them to beef up
the patrolling in the locality so that stern action might be taken
at the time of any such illegal actions. In the said complaint it
was stated that the plaintiff were a supplier to the Indian
Railways and as such irrational interference into the company
quarters was creating complications in the day to day supplies
to the Indian Railways.
20. That the defendants company in order to avoid the order of
Executive Magistrate played a trick to bypass the restrictive
order of the executive magistrate. Being advised by fertile brain
the defendant filed M.P. Case No. 3288/ 2020 against one of
the staffs namely Arun Mukherjee who was lodged in the staff
quarter, before the Court of Executive Magistrate, Barrackpore
and obtained an order directing the opposite party to not create
blocking-over the common passage although it was very much
within the know of the defendant No.2 that no such common
passage was in existence. It is strange that although there was
no direction empowering the defendant to demolish any existing
structure, the defendants by way of misinterpreting the order of
the Ld. Magistrate manipulated the local police station and
under the cover of night on 14.12.2020 assembled along with
over fifty rowdy people as well as a big JCB machine. Since CC
TV were installed in the factory area covering all structures
inside the factory, the mob at first broke all the camera and
only thereafter drove away the said staff from the staff quarter
and started demolishing the entire staff quarter by JCB
Machines. On the same night the mob at the instance and
direction of the defendants started erecting a big brick built
boundary wall enclosing the demolished area within the rest of
the land Coming to learn of such illegal demolition operation
the plaintiff in a desperate attempt to stop such illegal activities
rushed to the Ghugudanga Police Outpost being the nearest
police camp at around 1.30 AM on 14.12.2020 but could not
get any help from them. The plaintiff on the early morning
reported the said incident before the Officer in charge of Dum
Dum Police Station along with photographs of broken wall and
the newly constructed barricade with prayer for necessary
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action. At the time of reporting the plaintiff came to realise that
no tangible help or assistance from the police administration
was not possible as the defendants had already purchased the
entire administrative high ups.
22. That having succeed in their attempt to remove the
bottleneck of their intention to lay a 30 feet wide path straight
through Dum Dum road to reach the extreme northern part to
bring heavy truck with the earth with which they would fill up
the remaining pond, the defendants have started raising high
wall to the east of the demolished portion so that from outside
the plaintiff cannot gauge what action was going on inside.
Moreover barricade has been made denying the plaintiffs to
inspect the suit premises. Most surprisingly the defendants are
spreading rumour that they have recovered their portion which
remains blocked by the plaintiffs. The defendants expressed
that they became owner of the entire 10 acres of land by
different deeds and they have every authority to deal with their
property. In this regard it is submitted that in the event they
purchased any property from their vendors having no
semblance of possession since several decades without taking
any steps to recover the possession from the plaintiffs, then
simply by the strength of any deed, they have no legal authority
to obtain forcible possession without due process of law.
23. That it will thus appear that the plaintiff before the
dispossession from the staff quarter had been in the settled
possession in or over the suit property since several decades
and law of this land did not permit anybody to take forcible
possession of any land by dispossessing any occupant without
due process of law.”
24. As per the plaint case, the plaintiff claimed to be a company
incorporated under the Companies Act, 1956. The company was first set
up at Howrah and thereafter, shifted to 37 Dumdum Road, police
station- Dumdum, Kolkata 700037 in the year 1935. The plaintiff was
running a manufacturing business over a vast area measuring about 10
acres. Apart from the factory shed, the land also had staff quarters in
the south west corner. On and from 2017, some persons started filling
up the ponds in order to construct a multi-storeyed building. The
plaintiff approached several authorities including the learned Executive
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Magistrate, Barrackpore, alleging illegal filling up of all the ponds and
also attempts to demolish the staff quarters. On the encouragement of
local administration, the defendants started constructing a big wall on
the western side of the premises, just adjacent to the staff quarters and
upon completion of such construction, the staff were threatened and
asked to vacate the quarters. Averments had been made that the
defendants were trying to fill up four of such ponds which were within
the 10 acres of land and within the four acres on which the factory shed
had been constructed. Further allegation was that, the defendants
constructed a 30 ft. wide road intersecting the plaintiff’s factory shed, so
that they could have access to Dumdum road. Allegation had also been
made that a shop keeper known as Santu, who connived with the
defendants and often gathered people on the south west corner of the
staff quarters of the company premises, was threatening to demolish the
rooms. On the night of December 14, 2020, the staff quarters were
bulldozed and demolished with the help of JCB machines. Thereafter,
the defendants started raising the wall on the eastern side of the
demolished portion and hence, the suit was filed for recovery of
possession, with the allegation of demolition and dispossession from the
staff quarters.
25. The amendment of the schedule was an attempt on the part of the
plaintiff to correctly depict the area from which the dispossession took
place. The learned judge rightly held that the correctness of such
statements could not be decided at the stage of considering the
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applications for amendment. The plaintiff would have to prove its case at
the trial, on evidence. Incorporation of the amendment would not ipso
facto be acceptance of the statements made by the plaintiff. All
statements made by the plaintiff would be subject to proof and the suit
would be decided entirely on the evidence to be adduced by the parties.
26. Thus, this court does not find any mala fide on the part of the plaintiff in
seeking to correct the alleged mis-description of the suit property in the
schedule. Incorporation of the sketch map along with the schedule can
also be permitted for better description, identification and demarcation
of the schedule property.
27. In the matter of Life Insurance Corporation of India vs. Sanjeev
Builders Private Limited and another reported in AIR 2022 SC 4256,
the Hon’ble Apex Court laid down the principles governing amendment,
in paragraph 70 of the decision. The relevant portion is quoted below:-
(iii) The prayer for amendment is to be allowed:-
(i) if the amendment is required for effective and proper adjudication
of the controversy between the parties, and
(ii) to avoid multiplicity of proceedings, provided
(a) the amendment does not result in injustice to the other side,
(b) by the amendment, the parties seeking amendment does not seek
to withdraw any clear admission made by the party which confers a
right on the other side and
(c) the amendment does not raise a time barred claim, resulting in
divesting of the other side of a valuable accrued right (in certain
situations).
28. In the decision of Rajesh Kumar Aggarwal and others vs. K.K.Modi
and others reported in AIR 2006 SC 1647, the Apex Court held that
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the Court was not to go into the merits of the amendment. The relevant
portion is quoted below:-
“While considering whether an application for amendment should or
should not be allowed, the Court should not go into the correctness
or falsity of the case in the amendment. Likewise, it should not
record a finding on the merits of the amendment and the merits of
the amendment sought to be incorporated by way of amendment are
not to be adjudged at the stage of allowing the prayer for
amendment.”
29. In the matter of Ganesh Prasad vs. Rajeshwar Prasad and ors.
reported in 2023 SCC OnLine SC 256 it had been held that amendment
should be allowed liberally.
30. The plaintiff is entitled to correct any mistake or mis-description.
Such correction cannot be termed as a mala fide attempt on the part of the
plaintiff to either alter the plaint case all together or resile from any
admission, which had been made in the plaint. The measurement, location
and the area of the property from which the plaintiff was dispossessed, was
sought to be mentioned with better clarity and with proper measurements.
Whether the plaint case will at all succeed is a different issue and subject to
trail.
31. As a general rule, amendment should be allowed, unless the same
amounts to withdrawal of admission, setting up of inconsistent pleas or
when relief claimed is barred by limitation. The relevant portions of the
order impugned are quoted below, which gives proper reasons as to why the
amendments were allowed.
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“Hd both sides, perused the materials on record.
It is seen from the petition filed by the plaintiff that the plaintiff is
wanting to amend the suit property as described in the plaint,
injunction petition and the local inspection petition. The amendment
as sought for by the plaintiff is not of such nature by which it can be
said that the same is so inconsistent with pleadings of the plaintiff
that it is entirely changing the nature and character of the suit, The
crux issue and the nature and character of the suit do not get vitiated
in any manner whatsoever by the amendment as sought for.
I also find no reason in the submission of the Ld. Lawyer for the
defendants that even if the petitions so made by the plaintiff be
allowed then also vagueness of the schedule would remain and that
would open floodgate of future petitions. Even if for argument’s sake it
be thought of that there remains vagueness in the schedule after the
amendment, as stated of by the Ld. Lawyer for the defendants, then
also they would be at liberty to aver the same at the appropriate stage
of the trial and the case of the plaintiff would perish if the same
stands established by the defendants. What can happen in future in
course of the proceeding of this suit cannot be conjectured and
hypothetically assessed by this Court at this stage. In view of the
citation as reported in AIR 2008 Supreme Court 1147, in order to
allow the prayer of the amendment the merit of the amendment is
hardly a relevant consideration and it would be open to the other
party to raise their objection in regard to the amendment by taking
necessary steps.
It is a fact that the plaintiff ought to have been diligent enough in
seeking amendment at an early stage, yet, since the proposed
amendment is necessary for the purpose of bringing to the fore the
real question in controversy between the parties and the same is not
affecting the crux issue and or nature and character of the instant
suit, the said amendment is required to be allowed.
It is a fact that in the instant case hearing of the injunction petition
was done in full and at that stage these petitions have come into fore.
In this regard 1 rely on the decision reported in AIR 2008 Supreme
Court 1147, wherein the Honourable Apex Court has stated that if it
is seen that the proposed amendment is necessary of bringing in fore
the real controversy between the parties, the said amendment is
required to be allowed, even if, there is lack of diligence in promptly
seeking the amendment by the party concerned. Even if, the
contention of Ld Lawyer for the defendants is taken into the
contention that the plaintiff by way of the said amendment is taking
contradictory plea then also in view of the citation as reported in AIR
2008 Supreme Court 1147, in order to allow the prayer of the
amendment the merit of the amendment is hardly a relevant
consideration and it would be open to the other party to raise their
objection in regard to the amendment by taking necessary steps. So
far as the point as regard to the necessity of the present amendment
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for the purpose of bringing to the fore the real question in controversy
between the parties is concerned, this court is of the opinion that the
impugned amendment as sought for is required for the purpose of
bringing the real question in controversy between the parties.
In view of all, I am of the considered view that the amendments as
sought for will not in any way change the nature and character of the
suit nor it will be prejudicial to the interest of the defendants. Since,
though the instant petitions are made after completion of the hearing
of the injunction petition and it could have been done at an earlier
stage had the plaintiff been diligent enough, yet, since it is necessary
for determining the real question in controversy, I am of the view that
the instant petitions craving leave for making necessary amendments
are required to be allowed. Hence it is.
ORDERED
that the petition dated 28-01-21 filed by the plaintiff under Order 6
Rule 17 CPC praying for amending the plaint as per the schedule of
the petition be allowed on contest without cost.
that the petition dated 28-01-21 filed by the plaintiff under Order 6
Rule 17 CPC praying for amending the injunction petition as per the
schedule of the petition be allowed on contest without cost.
that the petition dated 28-01-21 filed by the plaintiff under Order 6
Rule 17 CPC praying for amending the local inspection petition as per
the schedule of the petition be allowed on contest without cost.
The plaintiff is allowed to amend the plaint, injunction petition and
the local inspection petition according to the schedules of the petitions
so filed under Order 6 Rule 17 CPC read with section 151CPC and the
plaintiff is to file amended plaint, injunction petition and the local
inspection petition accordingly after serving copies to the defendants.
To 02.03. 21 for filing of amended plaint, injunction petition and the
local inspection petition.”
32. The scope of interference under Article 227 of the Constitution of India
is very limited. The High Court, while exercising superintending power, can
only decide whether the learned court had acted within the four corners of
his jurisdiction or not. This court finds that the decision of the learned court
is well-reasoned, based on correct parameters and also upon consideration
of various decisions of the Hon’ble Apex Court. The Court passed a
discretionary order.
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33. In the matter of K. Chinnammal (dead) Thr. Lrs. Vs. L.R. Eknath &
Anr. reported in 2023 6 SCR 831, the Hon’ble Apex Court held as follows:-
“31. As far as the width and amplitude of powers of the High Court under
Article 227 of the Constitution is concerned, we need only take note of, in
praesenti, Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97, and
Garment Craft v. Prakash Chand Goel, (2022) 4 SCC 181. In Estralla
Rubber (supra), it was stated:
“6. The scope and ambit of exercise of power and jurisdiction by
a High Court under Article 227 of the Constitution of India is
examined and explained in a number of decisions of this Court.
The exercise of power under this article involves a duty on the
High Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the duty
expected or required of them in a legal manner. The High Court
is not vested with any unlimited prerogative to correct all kinds
of hardship or wrong decisions made within the limits of the
jurisdiction of the subordinate courts or tribunals. Exercise of
this power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of duty and
flagrant violation of fundamental principles of law or justice,
where if the High Court does not interfere, a grave injustice
remains uncorrected. It is also well settled that the High Court
while acting under this article cannot exercise its power as an
appellate court or substitute its own judgment in place of that of
the subordinate court to correct an error, which is not apparent
on the face of the record. The High Court can set aside or ignore
the findings of facts of an inferior court or tribunal, if there is no
evidence at all to justify or the finding is so perverse, that no
reasonable person can possibly come to such a conclusion,
which the court or tribunal has come to.
7. This Court in Ahmedabad Mfg. & Calico Ptg. Co. Ltd. v. Ram
Tahel Ramnand [ (1972) 1 SCC 898 : AIR 1972 SC 1598] in AIR
para 12 has stated that the power under Article 227 of the
Constitution is intended to be used sparingly and only in
appropriate cases, for the purpose of keeping the subordinate
courts and tribunals within the bounds of their authority and,
not for correcting mere errors. Reference also has been made in
this regard to the case Waryam Singh v. Amarnath [AIR 1954 SC
215 : 1954 SCR 565 ]. This Court in Bathutmal Raichand Oswal
v. Laxmibai R. Tarte [ (1975) 1 SCC 858 : AIR 1975 SC 1297]
has observed that the power of superintendence under Article
227 cannot be invoked to correct an error of fact which only a
superior court can do in exercise of its statutory power as a
court of appeal and that the High Court in exercising its
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jurisdiction under Article 227 cannot convert itself into a court
of appeal when the legislature has not conferred a right of
appeal. Judged by these pronounced principles, the High Court
clearly exceeded its jurisdiction under Article 227 in passing the
impugned order.”
32. In the more recent Garment Craft (supra), this Court put it thus:
“15. Having heard the counsel for the parties, we are clearly of
the view that the impugned order [Prakash Chand Goel v.
Garment Craft, 2019 SCC OnLine Del 11943] is contrary to law
and cannot be sustained for several reasons, but primarily for
deviation from the limited jurisdiction exercised by the High
Court under Article 227 of the Constitution of India. The High
Court exercising supervisory jurisdiction does not act as a court
of first appeal to reappreciate, reweigh the evidence or facts
upon which the determination under challenge is based.
Supervisory jurisdiction is not to correct every error of fact or
even a legal flaw when the final finding is justified or can be
supported. The High Court is not to substitute its own decision
on facts and conclusion, for that of the inferior court or
tribunal. [Celina Coelho Pereira v. Ulhas Mahabaleshwar
Kholkar, (2010) 1 SCC 217 : (2010) 1 SCC (Civ) 69] The
jurisdiction exercised is in the nature of correctional jurisdiction
to set right grave dereliction of duty or flagrant abuse, violation
of fundamental principles of law or justice. The power under
Article 227 is exercised sparingly in appropriate cases, like
when there is no evidence at all to justify, or the finding is so
perverse that no reasonable person can possibly come to such a
conclusion that the court or tribunal has come to. It is
axiomatic that such discretionary relief must be exercised to
ensure there is no miscarriage of justice.”
34. In the matter of M/s. Puri Investments vs M/s. Young friends and
Co. and Ors decided in Civil Appeal No. 1609 of 2022, the Hon’ble
Apex Court held as follows:-
“10….. The High Court was conscious of the restrictive nature of
jurisdiction under Article 227 of the Constitution of India. In the
judgment under appeal, it has been recorded that it could not
subject the decision of the appellate forum in a manner which
would project as if it was sitting in appeal. It proceeded, on such
observation being made, to opine that it was the duty of the
supervisory Court to interdict if it was found that findings of the
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appellate forum were perverse. Three situations were spelt out
in the judgment under appeal as to when a finding on facts or
questions of law would be perverse. These are:-
(i) Erroneous on account of non-consideration of material
evidence, or
(ii) Being conclusions which are contrary to the evidence, or
(iii) Based on inferences that are impermissible in law.”
35. In the matter of Ibrat Faizan vs Omaxe Buildhome Private Ltd.
decided in Civil Appeal No. 3072 of 2022, the Hon’ble Apex Court held as
follows:-
“14.1 The scope and ambit of jurisdiction of Article 227 of the
Constitution has been explained by this Court in the case of
Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97,
which has been consistently followed by this Court (see the
recent decision of this Court in the case of Garment Craft v.
Prakash Chand Goel, 2022 SCC Online SC 29). Therefore,
while exercising the powers under Article 227 of the
Constitution, the High Court has to act within the parameters to
exercise the powers under Article 227 of the Constitution. It
goes without saying that even while considering the grant of
interim stay/relief in a writ petition under Article 227 of the
Constitution of India, the High Court has to bear in mind the
limited jurisdiction of superintendence under Article 227 of the
Constitution. Therefore, while granting any interim stay/relief in
a writ petition under Article 227 of the Constitution against an
order passed by the National Commission, the same shall
always be subject to the rigour of the powers to be exercised
under Article 227 of the Constitution of India.”
36. There is no quarrel with the propositions of law laid down in the
decisions relied upon by Mr. Mitra, learned senior Advocate. However, I
am not in agreement with Mr. Mitra on the issue that in a suit for
recovery of possession, the location of the suit property i.e., staff quarters
which were demolished could not be amended. An amendment to rectify
the description of the suit property, which would throw more clarity on
the identification of the suit property could not be said to be malafide and
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impermissible in law. Only because the description of the suit property
was being altered, it could not be said that the plaintiff was not aware of
the location from which the dispossession took place. Allowing the
amendment did not amount to changing the nature and character of the
suit. If the plaintiff committed a mistake in providing the exact
location/description of the suit property, such mistake could always be
amended. The order impugned is upheld. Amended plaint, injunction
application and application for local inspection will be filed within four
weeks from date, if not already filed. Additional written statement and
additional written objection/ objection to the amended injunction
application as also the amended application for local inspection shall be
filed within the time fixed by the learned trial court upon communication
of this decision.
37. The order impugned is upheld.
38. The revisional application is hereby dismissed.
39. There will be no order as to costs.
40. Parties are directed to act on the server copy of this judgment.
41. Urgent Photostat certified copies of this judgment, if applied for, be
supplied to the parties, upon fulfilment of requisite formalities.
(Shampa Sarkar, J.)