At, High Court of Judicature at Calcutta
By, THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA
For the Petitioners: Narayan Chandra Bhandari, Advocate. For the Opposite Parties: Devajyoti Barman, Sanjukta Basu Mallick, Advocates.
The present revisional application has been filed by the plaintiffs inter alia praying for execution of a deed of reconveyance in terms of an alleged agreement to that effect and consequential reliefs. In the plaint, the petitioners sought to make out a case of mortgage by conditional sale, coupled with a loan in substance. By virtue of an amendment taken out thereafter, the plaintiffs now seek to introduce certain averments relating to court fees. Certain other developments have also been sought to be incorporated by way of such amendment. Such amendment was refused by the impugned order dated April 02, 2016 on the premise that there were previous judgments by courts dismissing applications of the predecessor of the plaintiffs in respect of the suit subject matter. Another ground afforded in the impugned order for rejection of the prayer of the plaintiffs was that the averments sought to be introduced therein were barred by limitation.
2. Upon hearing both sides, it is evident that the trial court acted beyond jurisdiction in deciding the merits of the suit at the stage of deciding an application for amendment of plaint. The court below could not have decided the question as to res judicata or limitation on the face of the plaint or the amendment application without looking into the contentions raised by the defendant in his written statement and testing the said issues on evidence upon a full-fledged trial. As such, the portion of the order, whereby the amendment application of the present petitioners was rejected, cannot stand a moment's scrutiny as has to be set aside.
3. As to the other part of the impugned order, whereby a preliminary issue was framed as to maintainability of the suit, such framing of issue is palpably de hors the provisions of Order XIV Rule 2 of the Code of Civil Procedure. It is trite that only when an issue of law arises relating to either the jurisdiction of court or as to the bar to the suit by any law, a preliminary issue can be framed in respect thereof. Such is not the present case. Undoubtedly, the defendant/opposite party may have a very strong case on merits both as to res judicata and limitation. However, any finding as to such issue could not be arrived at at an interlocutory stage by the court below. The issue as to maintainability, even if the same arises, has to find place in the gamut of the other issues and has to be heard upon adduction of evidence and as a regular, not preliminary, issue in the suit.
4. Hence, C.O. No. 1589 of 2016 is allowed on contest, thereby setting aside the impugned order and allowing the amendment application of the plaintiffs. The plaintiffs/petitioners are directed to file their amended plaint accordingly within a fortnight from this date in the court below; in default, the rigour of order VI Rule 18 of the Code of Civil Procedure will take effect. The portion of the order impugned, whereby maintainability has been framed as preliminary issue, is also set aside. It is directed that such issue, if involved in the suit, will be taken up as a regular issue at the time of hearing of the suit.
5. Since the suit is pending since 2013, the Civil Judge (Junior
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Division), First Court at Malda is requested to dispose of the same as expeditiously as possible without granting unnecessary adjournments to either party. 6. There will be no order as to costs. 7. Urgent certified copies of this order, if applied for, be made available to the parties upon compliance of all requisite formalities.