SAKYA SINGHAROY AND ANR vs KAMAL PATRA AND ANR

07.09.2026
Sl. No. 6
Ct.No. 39
Amalranjan
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE

C.O. 2879 of 2026

Sri Sakya Singharoy & Anr.
Vs
Sri Kamal Patra & Anr.

Mr. Animesh Paul
…for the petitioners
Mr. Sanat Kumar Roy
Mr. Atanu Basu
…for the opposite parties

1. This revisional application is directed
against the impugned order dated
12.08.2026 passed by learned Civil Judge
st
(Senior Division), 1 Additional Court at
Purba Bardhaman in Title Suit no. 5 of
2009.
2. By the impugned order, the Trial Court,
inter alia , has rejected the plaintiff’s
application for amendment filed under
Order 6 Rule 17 of the Code of Civil
Procedure with costs of Rs. 1000/- to the
defendants.
3. It is the specific case of the petitioners that
the title suit has been filed by the plaintiffs
asserting their right, title and interest in
possession in respect of the common
passage as described in the schedule of the
plaint.

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4. Learned counsel appearing on behalf of the
petitioners submits that the plaintiffs had
filed an application for amendment of the
plaint under Order 6 Rule 17, praying for
amendment of the plaint by incorporating
the actual measurement of the common
passage of the suit property without
changing the nature and character of the
plaint and its prayer for effective and proper
adjudication of the controversy between the
parties
5. It is further submitted that the Survey
Passed Commissioner was appointed under
Order 26 Rule 9 of the Code of Civil
Procedure (in short CPC) for getting the
actual measurement and identification of
the suit property in the year 2014. The said
report was challenged before the Trial Court
by the plaintiffs, alleging that it was not
prepared properly. Ultimately, the Trial
Court rejected the prayer. Petitioners have
challenged the same before the Hon’ble
High Court by filing a revisional application,
being CO No. 2575 of 2014. A Co-ordinate
Bench of this Court disposed of the
application and further directed the learned
Commissioner to go to the concerned
locality upon due notice to the parties for

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measurement of the length and breadth of
the suit passage in the presence of the
parties and draw the sketch map and file a
fresh report within a period of 3 months
from the date of receipt of the order.
However, the learned Commissioner was
unable to carry out the inspection work
even after a lapse of 6 years.
6. Under such circumstances, the plaintiffs
had filed a fresh application under Order 2
6 Rule 9 for appointment of a new Advocate
Commissioner for fresh measurement of
passage, however, such prayer was rejected
by the Trial Court.

7. Feeling aggrieved, the petitioners had filed
another revisional application being C.O.
No. 3321 of 2023 and vide order dated
04.12.2024 the Hon’ble Co-ordinate
directed the Trial Court to appoint a new
Advocate Commissioner at the cost of the
plaintiffs/petitioners to measure the actual
passage and prepare a sketch map and
submit a report within 4 weeks from date of
receipt of the order.
8. The Survey Passed Commissioner, upon
appointment, visited the suit premises,
pursuant to the order passed by the Trial
Court and measured and prepared the

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sketch map. The report was submitted
before the Trial Court and was accepted,
since none of the parties objected to it, and
a date was fixed for arguments.
9. At the argument stage, the plaintiffs filed
an application for amendment, which was
rejected by the Trial Court, although the
same was essential for proper disposal.
Therefore, learned counsel submits that the
same is liable to be set aside, and the
plaintiffs should be permitted to amend the
plaint.
10. Learned counsel relies upon judgments of
the Hon’ble Supreme Courts, in the cases of
1 . Rajesh Kumar Aggarwal and others
Vs. K.K. Modi and others , reported in
(2006)4 SCC 385, particularly, in
paragraphs 15 and 20; 2. OM Prakash
Gupta Vs. Ranbir B. Goyal , reported in
(2002)2 SCC 256, particularly in
paragraphs 11 and 12; and 3 . Life
Insurance Corporation of India Vs.
Sanjeev Builders Private Limited and
Another, reported in (2022) 16 SCC 1 ,
particularly in paragraph nos. 71 onwards
of the said judgment, to support his
contention that the application for
amendment may be allowed at any stage, as

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the rule is that the courts should try a case
on merits. It may allow all amendments
necessary to determine the real question in
the dispute between the parties that could
not have been filed even before the
commencement of trial.
11. On the other hand, learned counsel
appearing on behalf of the opposite parties
submits that the application for amendment
is only for the purpose of filling up the
lacuna after knowing the defendant’s case
and even after accepting the Survey Passed
Commissioner’s report, which indicates
actual measurement of the common
passages. Secondly, the plaintiffs have filed
this application only to drag the suit at the
stage of arguments. The said measurement
is already indicated in the plaint itself.
Therefore, the Trial Court has rightly
rejected the prayer of the petitioners.
12. Learned counsel for the opposite parties
relies upon the judgment in the case of
Basavaraj vs. Indira and Others reported
in (2024) 3 SCC 705 to bolster his
contention that the rule prevents an
application for amendment after trial has
commenced unless the court concludes that
despite due diligence, the party could not

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have raised the issue of amendment before
commencement of the trial.

13. Having considering the arguments made by
the learned counsels for the respective
parties and on perusal of the impugned
order by the Trial Court as well as the
judgments cited by the parties, this court
finds that the Trial Court has rightly
rejected their prayer as it was filed at a
belated stage, i.e., after a lapse of almost 17
years, without any valid explanation. The
plaintiffs are unable to show the Trial Court
as well as this court why the petitioners
could not have raised such amendment
before the commencement of Trial. In
addition, this court also finds that the
Commissioner’s report, appended to the
application, clearly shows the measurement
in the sketch map. The report was accepted
by both the parties without any demur. The
sale deeds annexed to the plaints also
clearly specify the measurement of the
common passage in dispute. These facts are
sufficient to adjudicate the suit.
Accordingly, this Court does not find any
merit in the application; as such, the
impugned order under challenge calls for no
interference.

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14. Accordingly, the revisional application being
C.O. 2879 of 2026 is dismissed without
order as to costs.
15. Consequently, the connected application, if
any, is, thus, disposed of.
16. Interim order, if any, stands vacated.
17. All parties shall act in terms of the copy of
this order duly downloaded from the official
website of this Court.
18. Urgent certified photocopy of this order, if
applied for, be supplied to the parties taking
all legal formalities.

(Ajay Kumar Gupta J.)