1. The present revisional application has been preferred against an order whereby the defendants/petitioners’ application for amendment of their written statement was refused by the learned trial Judge.

2. Learned counsel for the petitioners argues that although the amendment application was filed on May 6, 2023, much prior to the commencement of the trial by proving the affidavit-inchief filed by the plaintiffs, the learned trial Judge proceeded to reject the amendment application on the premise that the incorporation of some dates in the written statement at “this stage of the suit where the evidence has been proceeded” seems to hamper the rights of the plaintiffs in the suit and there is possibility of change of nature and character of the suit and the defence taken initially.

3. It is contended that the learned trial Judge completely overlooked the fact that on the date when the amendment application was filed, the evidence had not yet started.

4. Learned counsel places reliance on a Division Bench judgment of this Court in Sree Sree Iswar Radha Behari Jew v. Malati P. Soni, reported at AIR 2019 Cal 131, in support of the proposition that for the purpose of the proviso to Order VI Rule 17 of the Code of Civil Procedure, the commencement of trial is when the court applied its mind to assess the lis after the first affidavit-of- evidence is filed and such application of the judicial mind is when the first witness proves his affidavit-of-evidence or such witness seeks to prove a document for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier.

5. Learned counsel further submits that the rudiments of the pleadings were already there in the original written statement and only further particulars were sought to be furnished by way of amendment. Thus, there is no scope of alteration of the nature and character of the suit by the amendment.

6. Learned counsel appearing for the plaintiffs/opposite parties opposes the revisional application and submits that the amendment application has been taken out after long fourteen years from the institution of the suit. It is contended that due to pendency of interlocutory applications in the interregnum, the evidence could not commence in the suit.

7. However, it is further submitted that the case sought to be made out in the written statement in respect of alleged adverse possession of the premise by the defendants is not tenable in the eye of law.

8. Learned counsel for the plaintiffs/opposite parties cites Basavaraj v. Indira and others, reported at (2024) 3 Supreme Court Cases 705, for the proposition that the right accrued to the opposite parties cannot be taken away on account of delay in filing an amendment application.

9. Upon hearing learned counsel for the parties, it transpires that a Division Bench of this Court, in the matter of Sree Sree Iswar Radha Behari Jew (supra), upon taking into consideration all previous judgments holding the field, came to the conclusion that for the purpose of the proviso to Order VI Rule 17 of the Code of Civil Procedure, the “commencement of trial” shall be construed to be when the first witness proves his affidavit-of-evidence or such witness seeks to prove a document for it to be tendered in evidence or the cross-examination of such witness begins, whichever is earlier.

10. From the annexures to the supplementary affidavit filed by the petitioners with the leave of the Court, it appears that the examination-in-chief on affidavit of the plaintiffs’ witness no.1 was tendered to the witness and proved for the first time on May 19, 2025; whereas in the impugned order itself it is reflected that the amendment application was filed on May 6, 2023.

11. Thus, following the dictum of Sree Sree Iswar Radha Behari Jew (supra), the amendment application was filed long prior to the commencement of trial and, as such, the rigours of the proviso to Order VI Rule 17 of the Code are not attracted.

12. The learned trial Judge, instead of adverting to such aspect of the matter, mechanically dismissed the amendment application not only on the ground of delay but also on the finding that such amendment, if allowed, has every possibility of change of nature and character of the suit and the defence taken initially.

13. However, such observation of the learned trial Judge is patently perverse.

14. In the original written statement, the premise of the defence, inter alia, was alleged adverse possession of the defendants.

15. In paragraph no.11 of the original written statement, the defendants/petitioners had already stated that the recorded owners left “in 1962” from Haldibari for East Pakistan, now Bangladesh; whereas by way of the proposed amendment, between the word “in” and the year “1962”, the phrase “3rd week of May” is sought to be inserted. Hence, insofar as such component of the amendment is concerned, the foundational fact was already there in the pleadings and the year 1962 was also mentioned in the original written statement. The petitioners merely seek to introduce the specific week when the true owners allegedly left the suit property.

16. By the second component of the amendment, the defendants/petitioners seek to introduce the allegation that the boys of the local club of the area took possession forcibly on 31st day of April, 1962.

17. In the original written statement, it was already pleaded that at the material point of time, the local boys of the area used to play football and other games in the said land, including the suit land, peacefully, publicly, openly, continuously, uninterruptedly and adversely against the real owners.

18. Thus, nothing new, changing the nature and character of the original defence, has been sought to be introduced by way of the proposed amendment.

19. Hence, particularly in view of the fact that the rigour of the proviso to Order VI Rule 17 of the Code is not applicable, there could not have been any bar in allowing the said amendment otherwise.

20. It is well-settled that merely allowing an amendment to the pleading does not tantamount to accepting the facts sought to be incorporated by such amendment and the amended pleadings would be subject to being proved on evidence in the trial.

21. Thus, no conceivable prejudice could be caused to the plaintiffs/opposite parties sufficient to dismiss the amendment application.

22. Insofar as the judgment cited by the plaintiffs/opposite parties is concerned, that is Basavaraj (supra), the said judgment was delivered in the context of the petitioners in the amendment application therein not meeting the preconditions laid down in Order VI Rule 17, since no due diligence was pleaded. The Hon’ble Supreme Court categorically observed in the said judgment itself that “in the case in hand”, the respondents had not even pleaded their case before the trial Court for the application for amendment that due diligence was there at the time of filing of the suit in not seeking relief prayed for by way of amendment.

23. That apart, the Hon’ble Supreme Court flagged the fact that the amendment application was filed at the fag end of the trial.

24. The Hon’ble Supreme Court also considered previous judgments of itself where it was held that amendment may be refused if it introduces a totally new and inconsistent case or challenges the fundamental character of the suit. In the facts of the cited judgment, the Hon’ble Supreme Court observed that by way of amendment, the relief of declaration of the compromise decree being null and void was sought, which would certainly change the nature of the suit and was impermissible.

25. It is trite law that a judgment is a precedent only for the contextual matrix in which the same is delivered and cannot be applied universally as precedent in all cases.

26. As discussed above, since the facts of the cited report are entirely different from the present case, where the amendment application has been filed before commencement of trial and does not change the nature and character of the suit, the learned trial Judge refused to exercise jurisdiction vested in him by law in dismissing the amendment application filed by the defendants/petitioners.

27. Accordingly, CO No. 207 of 2025 is allowed on contest, thereby setting aside the impugned order, bearing no. 114 dated March 24, 2025 passed by the learned Civil Judge (Junior Division) at Mekhliganj, District- Cooch Behar in Title Suit No. 3 of 2009, and allowing the application for amendment filed by the defendants/petitioners in the said suit.

28. The concerned department of the trial Court shall carry out the necessary corrections to the original written statement accordingly within a fortnight from the date of communication of this order to the trial Court.

29. In view of the long pendency of the matter, it is expected that the learned trial Judge shall dispose of the suit as expeditiously as the business of the said Court permits.

30. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.