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1967 DIGILAW 6 (GAU)

Elangbam Mangi Singh v. Ngangbam Tombi Singh

1967-01-23

C.JAGANNADHACHARYULU

body1967
ORDER This is a civil revision filed under section 115 C. P. C. read with section 34 of the Manipur (Courts) Act, 1955 to set aside the order of the Munsiff, Manipur in a petition dated 2-8-1965 in Title Suit 23 of 1963 filed under Order 6, Rule 17 C. P. C. to allow the petitioner to amend the written statement. 2. The first respondent filed Title Suit 23 of 1963 in the lower court on 15-2-1963 for declaration of his title to and recovery of possession of a portion of the suit land U/P No. 42/73 I. W. T. comprising Dag No. 1620 alleging that he purchased the land on 3-1-1962 under a registered sale deed for Rs. 1,700/-from the respondents 2 and 3. The petitioner, who is the first defendant, in the suit is the contesting party. He filed written statement on 11-4-1963 pleading inter alia that his father, during his life time, purchased the suit land in or about 1940 under an oral sale from the respondents 2 and 3, that ever since he has been in possession and enjoyment of the property by constructing houses on it, that he perfected his title to the same by adverse possession, that the respondents 2 and 3 had no saleable interest in the land and that the suit is liable to be dismissed. 3. Subsequently, the suit underwent a number of adjournments for trial. On 2-8-1965, the petitioner filed a petition for the amendment of the written statement alleging that he traced a document dated 5-3-1940 in the month of January, 1965, in his fathers Chandan Laipot, that the document supports the petitioners contention and that, therefore, he should be permitted to amend the written statement. The petitioner wants to amend the written statement by alleging that the respondents 2 and 3 executed a deed on 5-3-1940 acknowledging receipt of a sum of Rs. 50 as part payment of the consideration of Rs. 300, that the respondents 2 and 3 agreed to execute a registered sale deed on payment of the balance of Rs. 250 within three months from 5-3-1940 that the petitioners father paid the balance of Rs. 250 before the due date, but that the respondents 2 and 3 did not execute any registered sale deed and that the father of the petitioner continued to occupy the suit land as its owner from 1940. 250 within three months from 5-3-1940 that the petitioners father paid the balance of Rs. 250 before the due date, but that the respondents 2 and 3 did not execute any registered sale deed and that the father of the petitioner continued to occupy the suit land as its owner from 1940. The lower court held that the proposed amendment is not necessary to determine the real controversy between the parties, that it also introduces a new plea of part performance and that the petitioner is also guilty of gross negligence in filing the petition for amendment and dismissed the petition. Hence the present civil revision petition. 4. Under Order 6, Rule 17 C. P. C. the Court may, at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just and also amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. The tests which have to be applied before an amendment can be granted are now well settled. Firstly the amendment must be necessary for the purpose of adjudication of the real question in controversy between the parties. Secondly, it should not work injustice to the other side. Vide Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363 . The contention of the learned counsel for the petitioner is that there is, however, some difference in the principles, which should govern amendment of written statement that the rule that the plaintiff cannot be allowed to amend his plaint so as to alter materially or to substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement and that adding a new ground of defence does not raise the same problem as adding or substituting a new cause of action and relied on Nrisingh Prasad v. Steel Products Ltd., AIR 1953 Cal 15 . Nevertheless, it was also held that no amendment should be allowed, if it does not satisfy the cardinal tests. In Shaik Masthan Sahib v. Balarami Reddi, AIR 1953 Mad 958 , it was held that where the points raised in an amendment, sought to be introduced, are already covered by original written statement, then the proposed amendment cannot be allowed. In Mt. In Shaik Masthan Sahib v. Balarami Reddi, AIR 1953 Mad 958 , it was held that where the points raised in an amendment, sought to be introduced, are already covered by original written statement, then the proposed amendment cannot be allowed. In Mt. Subashini Majumdar v. Krishna Prasad Mahatoo. AIR 1956 Assam 79, it was held that if an amendment of written statement causes prejudice to the plaintiff, which cannot be compensated by costs, then it should not be allowed. In Krishnaswamy Iyer v. Ouseph Mathai, AIR 1961 Kerala 110, it was held that if the amendment of written statement is not bona fide and, if allowed, it results in an entirely new case made out if a fresh suit on the amended claim would be barred by limitation on the date of the application for amendment, then the order allowing the amendment is not maintainable in law. Thus, in any case, the two cardinal tests mentioned above have to be satisfied. 5. In the present case the petitioner set up a case of oral sale in 1940 of the suit land in favour of his father by the respondents 1 and 3 and pleaded that his father was in possession of it, that after his fathers death the petitioner has been in possession of it and that he perfected his title to the suit land by adverse possession. By filing a belated document dated 5-3-1940, though the petitioner ostensibly wants to show the date of the agreement of sale, a reading of the document shows that it is an agreement to sell the land in question. So, the petitioner wants to set up a new case of part performance of the agreement of sale under section 53-A of the Transfer of Property Act. As can be seen from N. Varada Pillai v. Jeevarathammal AIR 1919 P.C. 44, the document can be looked into for the collateral purpose of explaining the nature and character of the possession of the land by the petitioner. So, undoubtedly, the petitioner will be entitled to set up a further plea of part performance of the agreement of sale of the land under section 53-A of the Transfer of Property Act. This changes the character of the defence and introduces a new and a different plea altogether. So, undoubtedly, the petitioner will be entitled to set up a further plea of part performance of the agreement of sale of the land under section 53-A of the Transfer of Property Act. This changes the character of the defence and introduces a new and a different plea altogether. When questioned whether the petitioner would simply rely on the date of the document or whether he wants to set up a further and new plea of part performance of the agreement under section 53-A of the Transfer of Property Act, the learned counsel for the petitioner stated that he would not only rely on the date of the agreement but also, if the law permits, on the document to set up a plea of part performance. The learned counsel for the first respondent stated that he was prepared to proceed with the suit and meet the case of the petitioner based on his alleged adverse possession of the suit land. He further argued that if now the petitioner is permitted to set up a new plea of part performance, then the plaintiff-first respondent will be prejudiced and that his claim to damages against the respondents 2 and 3 will be barred by limitation. If the petitioner is allowed to amend the written statement, then the first respondent will have to amend the plaint to make out a case to show that his claim for damages as against the respondents 2 and 3 is not barred by limitation. The amendment will, therefore certainly cause prejudice to him. The proposed amendment is only a pretext for setting up an altogether new plea of part performance. The alleged oral sale is being changed into a written sale. If really the petitioner wants to rely on the document for the purpose of showing the date of the sale, he can tender it in evidence. 6. The story of the petitioner that he traced the document in question in the Chandan Laipot in January, 1965 after a lapse of about 25 years from the date of the document is unbelievable. Chandan Laipot is used daily for putting tilak on the face by the residents of Manipur. So, it is impossible to believe that the document was not traced earlier. Also, if really the document was traced in Jan. 1965 there is no reason why it was produced into Court on 2-8-1965. Chandan Laipot is used daily for putting tilak on the face by the residents of Manipur. So, it is impossible to believe that the document was not traced earlier. Also, if really the document was traced in Jan. 1965 there is no reason why it was produced into Court on 2-8-1965. So, there are no bona fides in the petition. The question of genuineness of the document is, however, left open to be decided by the trial Court. 7. In the result, the petition fails and is accordingly dismissed with costs here and in the court below. Petition dismissed.