1. This application is at the instance of the opposite party no.1 of the misc. case bearing Misc. Case No.1551 of 2005 pending before the learned Judge, City Civil Court, Tenth Bench, Calcutta.
2. The petitioner of that misc. case / opposite party herein instituted an application under Section 73 read with Section 74 of the Indian Trusts Act before the learned Chief Judge, City Civil Court, Calcutta for appointment of himself as trustee of the trust referred to in the said misc. case.
3. In that misc. case, the petitioner herein entered appearance and he is contesting the said misc. case. At the stage of recording evidence, that is, at trial stage, the petitioner of the misc. case prayed for amendment of the plaint and that application for amendment was allowed by the impugned order. Being aggrieved, this application has been preferred.
4. Now, the question is whether the impugned order should be sustained.
5. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the contention of the petitioner of the misc. case is to the effect that as per terms of the trust deed, there cannot be less than two trustees at any time. But the opposite party/petitioner herein has been acting as sole trustee all along and for that reason, the said application under Section 73 read with Section 74 of the said Act was filed.
6. The evidence was being recorded. At that time, the said application for amendment of the said application for incorporation of as many as 11 paragraphs of the earlier application contending, inter alia, that as per terms of the trust deed, there cannot be sole trustee in respect of the property, has been filed. On perusal of the said application, I find that the petitioner of the misc. case did not state that in spite of due diligence, he could not file the application at the earlier stage.
7. Though the application of the opposite party has been converted into a misc. case since it was filed after amendment of the C.P.C. in 2002, it is to be seen whether the petitioner of the misc. case has shown that in spite of due diligence he could not pray for amendment of the plaint at the earlier stage. On perusal of the application for amendment, I find that the opposite party no.1 has prayed for major changes in the application under Section 73 read with Section 74 of the said Act and he did not state that in spite of due diligence he could not pray for amendment at the earlier stage. Therefore, the proposed amendment is hit by the proviso to Order 6 Rule 17 C.P.C. The provisions for amendment of the plaint should also apply in the case of the misc. cases like the present one which determines rights, title and interest of the parties with regard to the matter in dispute. The amendment should not have been allowed by the learned Trial Judge. In fact, the learned Trial Judge has not discussed anything. But, he simply allowed the application for amendment with costs holding that amendment should be allowed on payment of costs.
8. The impugned order, therefore, cannot be supported at all. The learned Trial Judge has failed to exercise the jurisdiction vested in him.
9. The revisional application succeeds. It is, therefore, allowed. The impugned order is hereby set aside.
10. The application for amendment dated June 7, 2006 filed by the opposite party no.1 herein stands rejected.
11. Considering the circumstances, there will be no order as to costs.
12. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.