SUDIP KUMAR GHOSH AND ANR vs AYAN ROY
- Court
- Calcutta High Court
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
BEFORE:
The Hon’ble Justice Hiranmay Bhattacharyya
C.O. No. 153 of 2026
Sudip Kumar Ghosh & Anr.
Versus
Ayan Roy
Appearance:
Mr. Debjit Mukherjee
Mr. Sabyasachi Mondal
Mr. Sarthak Dey
Ms. Payel Khanra
... for the petitioner
Mr. Somnath Roy Chowdhury
Ms. Arpita Chowdhury
…for the opposite party
Heard on: 01.09.2026
Judgement delivered
st
In open Court on: 1 September, 2026.
The Court:-
1. This application under Article 227 of the Constitution of India is at
the instance of the defendants and is directed against an Order being
No. 42 dated November 26, 2025 passed by the learned Civil Judge
st
(Junior Division), 1 Court at Howrah, in Title Suit No. 1107 of 1822.
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2. By the impugned order, the application under Order VI Rule 17 of the
Code of Civil Procedure filed by the petitioners praying for
amendment of the written statement, stood rejected.
3. The opposite party filed a suit for eviction of licensee being Title Suit
No. 1107 of 2082.
4. The petitioners are contesting the said suit by filing a written
statement denying the material allegations contained therein.
5. The petitioners, on an earlier occasion, filed an application under
Order VI Rule 17 of the Code of Civil Procedure for setting up a
counter claim and such application was allowed by the learned Trial
Judge. The opposite party challenged the order allowing the
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amendment application before this Court. By an order dated 10
July, 2025 passed in CO 4290 of 2024, the order allowing
amendment to set up counter claim at the instance of the petitioners
was set aside and the application for amendment of the written
statement stood rejected.
6. Petitioners filed an application for amendment of written statement
for incorporation of certain facts and the opposite party contested the
application for amendment of written statement by filing a written
objection thereto.
7. The learned Trial Judge rejected the application for amendment of
written statement by the order impugned. Being aggrieved, the
defendants have approached this Court.
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8. Mr. Mukherjee, learned advocate appearing for the petitioners
submits that the opposite party is claiming title in respect of the suit
property and have sought for eviction of the petitioners from the suit
property by treating them as licensees. He submits that for the
purpose of proving the fact that the opposite party do not have any
right, title and interest in respect of the suit property, proposed
amendments are necessary.
9. In support of his contention that the written statement can be
amended for the purpose of bringing on record subsequent events
which are necessary for the purpose of deciding the real controversy
between the parties in the suit, Mr. Mukherjee placed reliance upon
the decisions of the Hon’ble Supreme Court in the case of (i) Raj
Kumar Bhatia vs. Subhash Chandra Bhatia reported at (2018) 2
SCC 87 ; (ii) State of West Bengal & Ors. Vs. Pam Developments
Pvt. Ltd & Anr. (2025) 3 SCC 356
reported at ; and the decisions of
this Court in the case of Manasa Pallab & Ors. Vs. Jagabandhu
Aru & Ors. reported at 2025 SCC OnLine Cal 4268 and Samir
Ghosh & Anr. Vs. Pratap Ghosh & Ghosh reported at 2024 SCC
OnLine Cal 10955 .
10. Mr. Roy Chowdhury, learned advocate appearing for the opposite
party seriously disputes the submission made by Mr. Mukherjee. He
submits that the suit being TS 721 of 2025 was not filed under the
instructions of Smriti Rekha Roy. He further submits that the
purported notice issued by the learned advocate on behalf of Smriti
Rekha Roy was also withdrawn subsequently. He submits that the
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proposed amendments are not necessary for the purpose of deciding
the real controversies between the parties in the said suit. He further
submits that the proposed amendments are not bona fide
amendments. In support of his contention that a mala fide
application for amendment of pleadings cannot be allowed, Mr. Roy
Chowdhury places reliance upon the decisions of the Hon'ble
Supreme Court in the case of Life Insurance Corporation of India
–Vs.- Sanjeev Builders Private Limited & Anr . , reported at (2022)
16 SCC 1 and Revajeetu Builders and Developers –Vs.-
Narayanaswamy and Sons and Ors . , reported at (2009) 10 SCC
84 .
11. He further submits that Title Suit No. 721 of 2025 was filed by the
power of attorney holder and after Smriti Rekha Roy appeared in the
said suit and started taking steps, the same amounts to
cancellation/revocation of the power of attorney alleged to have been
executed in favour of Biswajit Majumder, the proprietor of M/s.
Swasti Construction. He thus submits that the statement made in
the plaint of Title Suit No. 721 of 2025 cannot be considered to be the
statement of Smt. Smriti Rekha Roy. In support of such contention
he places reliance upon the decision of the Hon'ble Supreme Court in
the case of Deb Ratan Biswas & Ors. –Vs.- Most. Anand Moyi Devi
& Ors. , reported at AIR 2011 SC 1653 .
12. Heard the learned advocates for the respective parties and perused
the materials placed.
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13. Record reveals that after the parties have adduced their evidences
and a date was fixed for argument, the petitioners filed an application
for amendment of written statement to insert counter-claim which
was allowed by the learned trial judge but ultimately stood rejected
by an order passed by this Court in C.O. 4290 of 2024. Thereafter,
the instant application for amendment of written statement has been
filed.
14. From the plaint of the instant suit being Title Suit No. 1107 of 2022
this Court finds that the opposite-party claimed to be the owner and
occupier of the two-storied G+1 building by virtue of a deed of gift
executed by Smt. Smriti Rekha Roy on March 29, 2022. The further
case of the opposite-party made out in the plaint of the said suit is
that the defendants/petitioners herein were permitted to occupy the
entire first floor of the said building as licensees. The cause of action
for filing the instant suit is that in spite of requests made by the
opposite-party to the petitioners to vacate the suit property, they
refused to vacate the suit property.
15. By filing the application for amendment of written statement,
petitioners attempted to incorporated the following facts.
(a) That previously the petitioners filed T.S. No. 1910 of 2015 against
Alok Rnajan Roy & Ors. and on an application filed by Alok
Ranjan Ray and Smriti Rekha Roy, under Order 7 Rule 11 of the
Code, the plaint stood rejected and the Title Appeal challenging
the said order stood dismissed and a second appeal is pending.
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(b) That M/s. Swati Construction represented by its proprietor and
Smt. Smriti Rekha Roy filed a suit being T.S. No. 721 of 2025 and
prior to filing such suit, one notice for eviction was served upon
the petitioners.
(c) Inspite of alleged transfer of the suit property by way of alleged
Deed of Gift by Smriti Rekha Roy in favour of Ayan Ray i.e., the
plaintiff, Smirti Rekha Roy has no right to claim title over the suit
property.
16. The specific defence case of the petitioners in the written statement is
that the suit holding was purchased at a valuable consideration of
Rs. 5,12,500/- out of which the petitioner no. 1 had paid an amount
of Rs. 1,50,000/- and the petitioner no. 1 and Smt. Smriti Rekha Roy
had entered into an agreement that the said property would be
registered in the name of Smriti Rekha Roy and when the balance
amount would be paid by the petitioner no. 1 his mother-in-law
would transfer the property in his favour. It has been further stated
in the written statement that he paid a further sum of Rs. 2,00,000/-
and the father-in-law of the petitioner no. 1 acknowledged the same.
17. The fact of filing of Title Suit no. 1910 of 2015 as well as the order
passed on July 17, 2019 in a Civil Revision Application directing the
learned trial judge to decide the application under Order 7 Rule 11 of
the Code afresh in the light of the provisions of the Prohibition of
Benami Property Transaction Act, 1988 has been admitted in the
written statement. It has been further admitted in the written
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statement that the plaint of Title Suit no. 1910 of 2015 has been
rejected.
18. The instant suit is a suit for eviction of a licensee filed by the opposite
party against the petitioners and the opposite party claims to be the
owner of the suit property by virtue of a registered deed of gift dated
29.03.2022 executed by Smriti Rekha Roy in favour of her son i.e.,
the opposite party herein.
19. After going through the proposed amendment this Court finds that
the petitioners sought to incorporate the fact that a notice of eviction
has been served upon the petitioner and thereafter a suit being Title
Suit No. 721 of 2025 has been filed by M/s. Swasti Construction and
Smriti Rekha Roy against the petitioners herein.
20. By way of amendment, petitioner sought to incorporate the fact that
after execution of the deed of gift in favour of the plaintiff, Smt. Smriti
Rekha Roy has no right to claim title to the property.
21. The effect of such proposed amendment is that the pendency of Title
Suit no. 721 of 2025 has no bearing on the title of the opposite party
in the suit property.
22. It is not the case of the petitioners that the opposite-party herein is a
party in T.S. no. 721 of 2025. The issuance of notice of eviction by
the learned advocate at the instance of Smt. Smriti Rekha Roy and
the subsequent filing of Title Suit No. 721 of 2025 cannot have any
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bearing on the suit for eviction filed by the opposite-party herein on
the ground of revocation of license.
23. There is no quarrel to the proposition of law laid down in Samir
(supra) that subsequent events can be allowed to be
Ghosh
incorporated by way of amendment but such facts should be
necessary for the purpose of deciding the real controversy between
the parties in the suit for eviction of a license at the instance of the
opposite-party against the petitioners.
24. Suit filed by M/s. Swasti Construction and Smriti Rekha Roy against
the present petitioners, does not have any relevance for the purpose
of deciding the real question in controversy between the parties in the
instant suit. Thus the said events though cropped up subsequent to
the filing of the suit cannot be allowed as the basic condition for
allowing an application for amendment has not been satisfied in the
case on hand.
25. That apart dismissal of Title Appeal against the order of rejection of
plaint of T.S. No. 1910 of 2015 and the pendency of the second
appeal are not germane in the instant suit.
26. The learned trial judge was right in reiterating the settled proposition
of law that in a suit for eviction of licensee the moment the plaintiff
establishes his absolute title to the suit property and the defendants
fails to establish their title to that property, the plaintiff is entitled to
get a decree for eviction on the basis of title and in case the plaintiff
fails to prove his title over the suit property, the suit shall fail.
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27. In Revajeetu Builders and Developers (supra), the Hon’ble Supreme
Court held that the first condition which must be satisfied before the
amendment can be allowed by the Court is whether such amendment
is necessary for the determination of the real question in controversy.
If that condition is not satisfied, the amendment cannot be allowed.
28. In Life Insurance Corporation (supra) it has been held that all
amendments are to be allowed which are necessary for determining
the real question in controversy.
29. This Court has already held that the proposed amendments are not
necessary for determining the real controversy. That apart the
amendment application has been filed at the stage of argument.
30. For all the reasons as aforesaid, this Court is not inclined to grant
any relief to the petitioners in this civil revision application.
31. In Pam Developments Private Limited (supra), the Hon’ble Supreme
Court after observing that subsequent debarment orders and related
events all arose as a part of the same event held that such
subsequent events form a continuous cause of action. The said
decision is distinguishable on facts and, therefore, cannot come to
the aid of the petitioner.
32. There is no quarrel to the proposition of law laid down in Raj Kumar
Bhatia (supra) that whether an amendment should be allowed is not
dependant on whether the case which is proposed to be set up will
eventually succeed at the trial. In the case on hand, the learned trial
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judge in exercise of its jurisdiction did not enter into the merits of the
case which was sought to be set up by way of amendment.
33. In Manasa Pallab (supra) it was held that the proposed amendments
challenging the deed of gift are necessary for determining the real
questions in controversy between the parties and the question of
causing prejudice to the other side does not arise as the petitioners
therein have based their claim on the deed of gift. The said decision
being distinguishable on facts cannot be applied to the case on hand.
34. The decision in the case of Deb Ratan Biswas (supra) is of no
assistance for the purpose of deciding the issue involved in the civil
revision application.
35. Accordingly, CO 153 of 2026 stands dismissed without, however, any
order as to costs.
36. It is, however, made clear that the observations made herein are only
for the purpose of supporting the ultimate conclusion made in this
order and the learned trial judge shall be free to decide the suit in
accordance with law.
37. Urgent photostat certified copy of this order, if applied for, be
supplied to the parties upon compliance of requisite formalities.
(Hiranmay Bhattacharyya, J.)
(sg/S. Banerjee)