C.O. 4259 of 2006 and CAN 1939 of 2012. Case: Ganesh Chandra Ghosh and Ors. Vs Ajit Kumar Ghosh and Ors.. High Court of Calcutta (India)
| Case Number | C.O. 4259 of 2006 and CAN 1939 of 2012 |
| Counsel | For Appellant: Pinaki Ranjan Mitra, Adv. and For Respondents: Bhudeb Bhattacharjee and C. Ganguly, Advs. |
| Judges | Debi Prosad Dey, J. |
| Issue | Benami Transactions (Prohibition) Act, 1988 - Section 4; Code of Civil Procedure, 1908 (CPC) - Order VI Rule 17; Order VIII Rule 6A |
| Judgement Date | March 24, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Debi Prosad Dey, J.
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Challenge in this revisional application is the order No. 24 dated 25th September, 2006 passed by learned Civil Judge(Sr. Divn.), 2nd Court, Howrah in Title Suit No. 79 of 2004 whereby and whereunder learned trial Judge has allowed the application under Order 6 Rule 17 of the Code of Civil Procedure for amendment of the written statement and thereby has allowed the defendants to incorporate a new case of the defendant in the form of counter claim as contemplated under Order 8 Rule 6A of the Code of Civil Procedure on the ground that such amendment has been allowed to prevent the multiplicity of the proceedings and that the question of limitation ought to be decided only after ascertaining the date of accrual of cause of action. The plaintiffs have challenged such order on the ground that learned trial Judge did not consider the wisdom of the legislature in incorporating Order 8 Rule 6A of the Code of Civil Procedure while allowing such prayer for incorporation of counter claim whereby the defendant has virtually stated that the properties acquired by one Khadomoni Dasi was the Benami Property of other members of the family and that the cause of action accrued long before the filing of this suit yet learned trial Judge did not consider the said points of law at the time of allowing such application for amendment of the written statement.
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Learned Advocate for the petitioner contended that some properties were acquired by Khadomoni Das way back in the year 1944 and thereafter Khadomoni Dasi transferred such property to various persons. Khadomoni Dasi sold her 1/3rd share to one Promothonath Ghosh.
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Promothonath Ghosh filed a suit for partition against other co-owners in the Court of the then Additional Sub-Ordinate Judge, Second Court, Howrah being TS No. 37 of 1952 which was decreed finally allotting 1/3rd demarcated share of Shri Promothonath Ghosh measuring 5 Katha 3 Chittakh and 22 Sq. Ft. out of total 14 Katha 13 Chittakh 9 Sq. Ft.
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In order to partition the joint family property a suit for partition was filed by the petitioners being TS No. 79 of 2004 in the Court of learned Civil Judge(Sr. Divn.), 2nd Court at Howrah. Defendant No. 1 duly appeared in that suit and filed written statement in the month of February, 2005. Subsequently, defendant No. 1 has filed another application for amendment of his written statement under Order 6 Rule 17 of the Civil Procedure Code for introducing a counter claim in respect of...
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