Sabyasachi Bhattacharyya DECISION
Sabyasachi Bhattacharyya, J.
1. The present revisional application is directed at the instance of the defendant in a suit, primarily challenging a transfer deed, against an order, whereby an application filed by the plaintiff/opposite party No. 1 for amendment of plaint was allowed.
2. Service on the opposite party No. 2 is dispensed with.
3. Learned senior counsel appearing for the petitioner argues that, after the defendant/petitioner disclosed its defence by way of filing an application under Order XXVI Rule 10 of the Code of Civil Procedure for appointment of an expert to ascertain the veracity of the signature of the plaintiff/opposite party No. 1 in the impugned document and filed written objection to the injunction application of the plaintiff, the plaintiff opposite party No. 1 took out the amendment application to displace the case of the defendant/petitioner.
4. By placing reliance on the original plaint, as it stood before amendment, learned senior counsel argues that the original pleadings were all of the tenor that the signature appearing in the impugned deed of 2010 was not the signature of the plaintiff at all and that the plaintiff never received any consideration money from the defendants.
5. By placing reliance on several paragraphs of the plaint, as those stood before amendment, in particular paragraph Nos. 8, 9 and 12(d), it is submitted that the categorical stand of the plaintiff initially was that the left thumb impression and the signature on the document-in-question did not belong to the plaintiff.
6. However, by virtue of the amendment, the plaintiff now sought to introduce pleadings to the effect that the signatures might have belonged to the plaintiff but obtained under the influence of drugs/substance abuse, at the instance of the defendants, in particular the defendant No. 2.
7. It is submitted that such a stand is diametrically opposite to the original plaint and cannot be permitted to be introduced by way of amendment, thereby taking the defendant/petitioner by surprise.
8. It is further submitted that the plaintiff, by way of the said amendment, also sought to delete certain paragraphs of the plaint, thereby obliterating the original plaint case, to the extent that the signature and the left thumb impression-in-question did not belong to the plaintiff, to bolster the amendments now sought.
9. It is further argued that, despite the introduction of the amendments-in-question, prayers (d) and (e) of the plaint still remain in the plaint, thereby putting forth a contradictory plaint case as to the signatures being of the plaintiff, but under influence of drugs on the one hand and, on the other, that the plaintiff never signed nor executed the document-in-question at all.
10. Learned senior counsel for the petitioner argues that such a sea change in the cause of action of the plaintiff by way of amendment is not permitted in law and as such, the trial court acted without jurisdiction in allowing the amendment application.
11. In support of his submissions, learned counsel for the petitioner cites a judgment reported at MANU/SC/0284/1964 : AIR 1965 SC 1008 (Municipal Corporation of Greater Bombay Vs. Lala Pancham and Others), primarily for the proposition that if certain particulars of fraud were not there in the original pleadings, those could not be introduced by way of amendment to fill up the lacunae in the plaint.
12. Learned senior counsel also places reliance on a judgment reported at MANU/SC/0519/1994 : (1994) 6 Supreme Court Cases 117 (Bijendra Nath Srivastava (Dead) Through Lrs. Vs. Mayank Srivastava and Others........