Asim Kumar Mondal, J.�The present application arising out of S.A. No. 52 of 1987 seeking amendment of written statement to bring on record the subsequent event. One Ashok Kumar Mukherjee, since deceased originally filed the suit as plaintiff being No. 9 of 1979 for partition against one Arati Das, since deceased as defendant No. 1 and others Manjuri Mohan Mukherjee, Manoj Mohan Mukherjee, Smt. Hiranmoye Devi and one Smt. Mira Devi as proforma defendants.
2. In the said suit Sri Ashok Kumar Mukherjee being original plaintiff sought for pre-emption of the property which was sold by the proforma defendants to Smt. Arati Das.
3. The ground for such pre-emption was that by registered deed of partition dated November 27th, 1967 the joint property belonging to the said Ashok Kumar Mukherjee and original proforma defendants in the suit was partitioned by metes and bounds. In the said deed of partition there is a clause to the effect that in case the allottees intend to transfer their allotment of the said property to any stranger they the must inform the other allottees the said fact by notice in writing.
4. It is alleged that proforma defendants 2 - 5 in derogation of the said stipulation in the deed of partition sold their allotment in favour of Arati Das, the original defendant on September 29th, 1975. Arati Das, thereafter sold the property to the present petitioner Shyam Sundar Rathi by registered deed of conveyance on February 20th, 1979.
5. The original defendant No. 1 Arati Das contested the suit taking the defence that the transaction in question initially was a mortgage. The plaintiff Ashok Kumar Mukherjee knew the fact and he also took part in the said negotiation and as such the suit for pre-emption filed by Ashok Kumar Mukherjee is barred under the law.
6. Learned Trial Court was pleased to dismiss the suit after taking into consideration of the fact that plaintiff took active role in the transaction.
7. The plaintiff being aggrieved by and dissatisfied with the judgment and decree preferred the appeal before the learned District Judge at Alipore being Title Appeal No. 581 of 1982. The plaintiff made a prayer for addition of the petitioner as a party defendant to the suit during the pendency of the appeal. The petitioner did not get summons though he was added as defendant No. 6 in the suit. The service upon the petitioner in appeal was dispensed with by the learned Lower Appellate Court. Therefore, the petitioner did not get scope to contest the said appeal. The predecessor-in-interest of the petitioner Arati Das contested the said appeal. Learned Lower Appellate court was pleased to allow the appeal and thereby decreed the Title Suit No. 9 of 1979. Arati Das preferred the Second Appeal before this Court.
8. Arati Das during the pendency of the Second Appeal declined to proceed with the appeal and accordingly they have been transposed in the position of the respondents and the present petitioner has become the sole appellant. The successors in interest of original plaintiff Ashok Kumar Mukherjee also transferred their interests in the suit property during the pendency of his appeal in favour of opposite party No. 1 and 2 Hiran Sarogi and Shashi Sarogi.
9. The petitioner has already filed an application under Order 41 Rule 27 of the Civil Procedure Code to produce the deed of conveyance dated September 21st, 1984 executed in favour of Smt. Sushama Saha by the original plaintiff Ashok Kumar Saha as additional evidence.
10. It is submitted that unless and until the said fact of transfer by Ashok Kumar Mukherjee by his own allotment has shown in the partition deed dated November 27th, 1967 in favour of one Smt. Sushama Saha is brought on record by way of amendment of the written statement, this Court not be in a position to take a notice of the said fact for effective adjudication of the suit.
11. Hence the petitioner is prayed for amendment of written statement as indicated above, for effective adjudication of the case.
12. The learned Counsel Mr. Ghosh appearing on behalf of the petitioner submits his arguments basing on the fact that plaintiff himself ignoring the stipulation of clause in the partition deed dated November 27th, 1967 regarding notice entered into an agreement for sale in respect of his own allotment in the said partition deed with a third party and finally transfer the same to his nominee by registered deed of sale. The plaintiff Ashok Kumar Mukherjee all along concealed the said fact of entering into an agreement for sale with third party during the pendency of the suit and also after the judgment of learned Lower Appellate Court passed on June 22nd, 1983 and finally executed the deed of sale on September 21st, 1984. So, Ashok Kumar Mukherjee, the original plaintiff was stopped from maintaining his suit for pre-emption due to noncompliance of the terms as stipulated in the partition deed.
13. Learned Counsel Mr. Basu appearing on behalf of the opposite party submits that the present applicant admittedly did not file any written statement and also admittedly he was not aware of the suit. The applicant admittedly did not file any written statement in the suit being No. T.S. 9 of 1979. So, the question of amendment of Written Statement by him does not arise as the right of amendment is restricted to the party making the pleadings. The present application has been added in the suit as co-defendant. So, he has no locus standi to seek amendment of written statement filed by another co-defendant. That Counsel also draws my attention that the fact remains that the applicant obtained a certified copy the deed in question on October 17th, 1985. No steps were taken by the applicant till the end of 2013. In the meantime the legal heirs and representatives of deceased Arati Rani Das has been substituted and later on the applicant was implied originally as the respondent in this suit was transposed as the applicant. Learned Counsel further submits that purported amendment sought to be introduced in the written statement of the original appellant has no relevance or nexus with the present lis and is not necessary for determining the real question of controversy between the parties. The only question involved there is whether the original defendant No. 2 to 5 had acted in violation of the partition deed and the fact sought to be raised herein has no relevance in that context. The proposed amendment is not necessary and will raise a completely new ground, totally inconsistent with the earlier one and also changes the nature and character of the suit. Finally the learned Counsel submits that if the amendment as proposed is allowed, it will cause prejudice to the respondent which cannot be compensated.
14. Learned Counsel Mr. Ghosh in reply submits that the sole appellant Arati Rani Das filed an application for Stay of the execution proceeding arising out of decree passed in the title appeal No. 581 of 1982 and in the said application in paragraph 7 disclosed fraudulent activity of the original plaintiff regarding the transfer of his eight anna share by a deed of agreement for sale. So, it has been proposed to be incorporated in the pleadings by way of amendment has already been produced by the predecessor-in-interest of the applicant in the early part of 1987. No formal application for amendment of written statement was filed and now formal application for amendment of written statement is being filed. So, the same may be considered and allowed.
15. Mr. Ghosh further submits that it is totally immaterial whether the certified copy of the deed was obtained on October 17th, 1985 or the applicant had knowledge or that the application has been filed on 2013 or 2014 or not. The fact desired to be brought on record by way of amendment had already brought to the notice of this Court by delivering the same in paragraph 7 of the application for stay. So, in view of submission of Mr. Ghosh the present application for amendment cannot be said to be barred by limitation. It is also submitted that the time factor is totally immaterial when there is a question of fraud. Finally, Mr. Ghosh submits that the respondent No. 1(d) litigating under the title of Ashok Kumar Mukherjee cannot rise, such question on the ground of delay Ashok Kumar Mukherjee cannot exercise his right to pre-emption on the basis of deed of partition, knowing fully well that he was also bound on such preemption clause that he also transferred his allotment to a third party without notice to the vendor of applicants predecessor-in-interest.
16. On careful perusal of the facts and circumstances of the case as well as on proper consideration of the submissions of learned Counsel for the parties it appears to me that one Ashok Kumar Mukherjee filed the pre-emption suit on the basis of terms and conditions of a partition deed in between him and his co-sharers. The allegation of Sri Ashok Kumar Mukherjee is that his co-sharers sold out their sharers of allotment to one Arati Das without giving him any notice in terms and conditions of partition deed. The transferee Smt. Arati Das contested the said pre-emption suit all along as defendant No. 2. The suit was dismissed against Ashok Kumar Mukherjee, the plaintiff. Thereafter appeal was preferred by Ashok Kumar Mukherjee, the plaintiff. The appeal was allowed in favour of Ashok Kumar Mukherjee. Arati Das preferred the second appeal before this Court. The moot question in the suit is that whether the plaintiff had the right to pre-empt the property in question in terms of partition deed. The very basis of the suit filed by Ashok Kumar Mukherjee is that his co-sharers sold out their share of allotment to Smt. Arati Das without serving any notice in terms of partition deed.
17. It is true that defendant No. 1 contested the suit and preferred second appeal on the basis of written statement filed by her in the original suit before learned Trial Court. Smt. Arati Das, the defendant No. 2 had never been brought on record the fact of transfer by Ashok Kumar Mukherjee all of his share even at the stage of second appeal which is pending before this Court. Admittedly the said fact was very much within the knowledge of Arati Das since long. Arati Das has also sold out his share which she was purchased from proforma defendant No. 2 to 5 in favour of present petitioners. Arati Das declined to proceed with the second appeal on the plea that she has got no right, title and interest in the suit property. The present petitioner was added as defendant No. 6 who transported themselves as appellant. The legal heirs and successors of Arati Das has already been substituted as co-defendants.
18. Under the facts and circumstances the locus standi of the present applicant is nothing but a co-defendant or can be termed as transposed plaintiff. The present applicant admittedly did not contest the suit before Trial Court or before First Appellate Court. He has got no knowledge about the suit so he cannot be said that he stepped into the shoes of Arati Das. He has not been substituted as the legal heir and representative of Arati Das. The present applicant on the circumstances cannot seek for amendment of application filed by another co-appellant. The fact which has proposed to be incorporated in the written statements is no doubt a fact which has got no relevancy and nexus with the present lis. The fact of sale of eight anna shares by Ashok Kumar Mukherjee, by violating the terms and conditions of the partition deed is no doubt a new fact which is no way related with the ground taken by the plaintiff in the pre-emption suit against the defendant Arati Das. The proposed amendment sought for by the applicant is no doubt unnecessary and totally inconsistent with the pleadings of the parties as well as issued involved in the suit. The proposed amendment at the belated stage of second appeal which is pending for last 30 years will no doubt change the nature and character of the suit as well as cause irreparable loss and injury. There is no scope to allow amendment of written statement as proposed by the applicant at a belated stage without any satisfactory grounds save and excepting ignorance of fact.
19. I have no hesitation to hold that the proposed amendment should not be allowed in view of the facts and circumstances of the present case as well as issues involved in the suit.
20. Thus, the application is dismissed with costs. The C.A.N. application being No. 1662 of 2014 is hereby disposed of. Urgent Photostat Certified Copy of this order if applied for be given to the parties on priority basis.
