Hazera Khatun Bibi v. Sri Rafique Molla — 1989 DIGILAW 123 (CAL)

JUDGMENT Pabitra Kumar Banerjee, J. In a declaratory suit filed by Hazira Khatoon Bibi and six others against Kasimon Bibi and her husband, the plaintiffs assailed the sale-deed dated 11.1.39 ext-2 alleged to have been executed and registered by Rahim Bux Mallick, predecessor-in-interest of the plaintiffs, on the ground that the said deed was brought into existence by the defendants by exercise of undue influence and fraudulent misrepresentation. The plaintiffs further asserted their uninterrupted possession over the 'B' schedule suit property and challenged the entries in the R.S. record of rights ext. 3 concerning the said property as erroneous. The defendants, in their joint written statement maintained that the sale deed dated 11.1.39 was a valid document for consideration, that it was acted upon and that the defendant no. 1 is in exclusive possession of the suit property which has been correctly recorded in the R.S. record of rights. 2. The learned Munsif found that the sale deed dated 11.1.39 was duly executed and registered by Rahim Bux, that no undue influence or fraudulent misrepresentation was exercised by the defendants and that the suit was barred by limitation. Earlier the application for amendment filed by the plaintiffs was rejected by order dated 11.4.80. The suit was dismissed on contest and this is how the learned Munsif disposed of the suit. On appeal the learned Additional District Judge, Howrah, upheld the findings of the learned Munsif and dismissed the appeal. That is how the appeal was dealt with by the first appellate Court. In the appeal before this Court the decree of dismissal of the Courts below is under challenge. During the pendency of this appeal in this Court, the plaintiff appellant no. 1 and both the defendant-respondents died and their heirs have been substituted. 3. Mr. That is how the appeal was dealt with by the first appellate Court. In the appeal before this Court the decree of dismissal of the Courts below is under challenge. During the pendency of this appeal in this Court, the plaintiff appellant no. 1 and both the defendant-respondents died and their heirs have been substituted. 3. Mr. Saktinath Mukherjee, the learned Counsel for the plaintiff-appellants took us through the entire evidence recorded by the learned Munsif, drew our attention to the application under Order 6 Rule 17 C.P. Code filed by the plaintiffs and its rejection by the Courts below and argued before us in his usual candidness, (1) that the Courts below erred in not considering the oral evidence of P.W.2 Saher Ali and DW1 Aminuddin revealing the facts and circumstances under which the impugned sale deed ext-2 was brought into existence, (2) that the failure of the courts below to take into account the relationship of lender and borrower between Aminuddin and Rahim Bux immediately preceding the alleged sale-transaction led to the miscarriage of justice and (3) that the application for amendment of plaint should have been allowed in consequence of which the plaintiff-appellants could characterise, in the alternative, the impugned sale-transaction as a loan transaction. In support of the contentions aforesaid our attention was drawn to the provisions of s. 37A of the Bengal Money Lenders Act, 1940. 4. Mr. Tarun Kumar Banerjee, the learned Counsel for the defendant respondents, on the other hand, urged that the Court hearing the second appeal is not competent to interfere with the concurrent finding, of facts arrived at by the Courts below and that a Suit for a mere declaration without any prayer for consequential reliefs was not maintainable as the same would be hit by s. 34 of the Specific Relief Act. 5. With regard to the first objection raised by Mr. Banerjee the following observations of their Lordships in the case of Dipak v. Lilabati reported in AIR 1987 SC page 2055 would be relevant. "Normally this Court is too reluctant to interfere with the concurrent findings of fact. But if the essential ingredients necessary for finding of a fact have not in fact been found by the Courts below then this Court is bound to examine the question where injustice or wrong is done. That jurisdiction has to be exercised sparingly. "Normally this Court is too reluctant to interfere with the concurrent findings of fact. But if the essential ingredients necessary for finding of a fact have not in fact been found by the Courts below then this Court is bound to examine the question where injustice or wrong is done. That jurisdiction has to be exercised sparingly. But that cannot mean that injustice must be perpetuated because it has been done two or three times in a case". In this connection we are reminded of certain principles enunciated by the Privy Council in the case of Rai Bahadur Lala Narsingh Das v. The Secretary of State for India reported in 29 CWN p. 822 which read like this "there must something else to be shown, not merely that on the balance of evidence it would be possible to reach a different conclusion but that the judgment cannot be supported as it stands, either by reason of wrong application of principle or because some important point in the evidence has been overlooked or misapplied". The observations of the Supreme Court and of the Privy Council quoted above were in our mind and hence we permitted Mr. Mukherjee to take us through the evidence and in this process it was detected that some important aspects of the case had not been considered at all in consequence of which wrong has been done to the plaintiff-appellants. While considering some events preceding the trial, we came across an application under Order 6 Rule 17 C.P. Code filed by the plaintiffs on 21.1.78. By the application the plaintiffs intended to insert a prayer, in the alternative, that the deed of mortgage dated 23rd Shravan 1345 B.S. and the deed of sale dated 26th Pous 1345 B.S. taken together constituted a loan in substance and that the sale deed dated 26th Pous B.S. was not an out and out sale. The defendants had opposed the plaintiffs prayer by filing a written objection. The learned Munsif rejected the plaintiffs application for amendment of the plaint mainly on the ground that if the said amendment was allowed it would have the effect of introducing a new ground of claim inconsistent with the original pleadings. The First Appellate Court affirmed the aforesaid findings of the learned Munsif. The learned Munsif rejected the plaintiffs application for amendment of the plaint mainly on the ground that if the said amendment was allowed it would have the effect of introducing a new ground of claim inconsistent with the original pleadings. The First Appellate Court affirmed the aforesaid findings of the learned Munsif. We have carefully gone through the oral and documentary evidence on record and we are satisfied that the Courts below erred in rejecting the plaintiffs' application for amendment. We shall first set out the legal principles established by judicial decisions from time to time in respect of amendment of plaint. But before that, it would be important to note that under s. 53 of the old Code of Civil Procedure, the rule as to amendments was more rigid and restricted than it is under the present Code of 1908 and that the proviso in the old section that ‘no amendment could be allowed which changed the character of the suit’ has been omitted and a new provision has been introduced by Order 6 Rule 17 which implies that even an amendment introducing a new ground of claim which might be inconsistent with the original pleadings may be allowed in proper cases "for determining the real question in controversy between the parties". The principles which should be taken into consideration in dealing with applications for amendment of plaint may be summarised in the following seriatim- 1. All amendments will be generally permissible when they are necessary for determination of the real controversy in the suit. 2. All the same, substitution of one cause of action or the nature of the claim for another in the original plaint or change of the subject matter of or controversy in the suit is not permissible. 3. Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment. 4. In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs. 3. Introduction by amendment of inconsistent or contradictory allegations in negation of the admitted position on facts, or mutually destructive allegations of facts are also impermissible though inconsistent pleas on the admitted position can be introduced by way of amendment. 4. In general, the amendments should not cause prejudice to the other side which cannot be compensated in costs. Besides the principles formulated above the Court should also take into consideration some other relevant aspects, namely, (a) whether there exists special circumstances requiring the exercise of the discretionary power, (b) whether the amendment sought for alters the foundation on which the suit is based and not the prayer in the plaint and (c) whether the proposed amendment causes prejudice or surprise to the opposite party. 6. We next turn to the facts of the case appearing before and after the trial and to see whether, in the special circumstances of the case, the prayer for amendment should have been allowed. In the plaint filed before the Court, the plaintiffs alleged that Rahim Bux Mallick, their predecessor-in-interest, became lunatic and suffered from various ailments for five years between 1342 and 1347 B.S. that he had mortgaged the property with defendant no. 2 Aminuddin, that the sale-deed dated 11.1.39 was brought into existence by exercise of undue influence and fraudulent misrepresentation. In other words, the plaintiffs all along maintained that the sale-deed was not acted upon and that the circumstances leading to the alleged execution and registration of the sale deed were highly suspicious. At the time of hearing of the suit the following facts emerged out of the testimony of DW1 Aminuddin. On 8.8.38 Rahim executed a deed of mortgage Ext. 2A in respect of the entire one bigha land (A Schedule) in consideration of a loan of Rs. 80/-. Thereafter Rahim took further loan of Rs. 60/- and eventually the sale-deed is said to have been executed on 11.1.39 on which date only Rs. 60/- were paid to Rahim. The sale deed which was for Rs. 200/- was taken not in the name of Aminuddin but in the name of his wife Kasiman. Rahim had faith in Aminuddin. Payment of loan in two instalments was not entered in the deed of mortgage which was retained by Aminuddin even after the sale deed. Rahim only knew how to sign his name in Bengali. 200/- was taken not in the name of Aminuddin but in the name of his wife Kasiman. Rahim had faith in Aminuddin. Payment of loan in two instalments was not entered in the deed of mortgage which was retained by Aminuddin even after the sale deed. Rahim only knew how to sign his name in Bengali. Even if there was another sale-deed on the same date by Rahim in favour of his wife, in respect of the eight annas share in the suit plots, her name has been excluded in the R.S. Record of Rights Ext. 3. P.W.2 Sahar Ali, who admittedly served as an identifier in both the deeds and who is in good terms with Aminuddin has deposed that Rahim was insane in January 1939. Sajad Ali, Seikh Samiruddin, the witnesses to the mortgate deed are still alive but none of them has been examined by the defendants. As the recitals in the deed of mortgate indicate, the motgaged property all along remained in the possession of the mortgagor Rahim. In the state of things prevailing at or about the time when the two deeds Exts 2A and 2 were brought into existence, the statement of DW-1 that, “I got no possession over the 3 plots as recorded in the R.S. record-of-rights," seems to be significant. 7. When the aforesaid facts and circumstances have come out on the surface from the side of the defence, the plaintiffs can legitimately expect that the controversy as to whether the sale-deed is an out and out sale or whether the mortgage deed considered along with the ostensible sale would constitute a loan transaction would be set at rest by a determination in the suit and this is possible if the amendment prayed for is allowed and the court is called upon to deal with that aspect with reference to the attending facts and circumstances. If the amendment is allowed, the foundation of the suit will not be altered; so also the defendants will not be taken by surprise. If the amendment is allowed, the foundation of the suit will not be altered; so also the defendants will not be taken by surprise. In this connection reference may be made to the provisions of s. 37A of the Bengal Money Lenders Act, 1940 which has been introduced by way of amendment in order to circumvent the mischief of sub-s. (c) of s. 58 of the Transfer of Property Act, 1882, to ameliorate the pitiable conditions of the poor debtors and to save them from the clutches of greedy creditors. 8. This brings us to the determination of the question as to how the judgment and decree appealed against should be dealt with in this appeal. It is obvious that some material aspects having important bearing upon the ultimate decision in the suit have not been considered at all by the courts below and moreover if the trial proceeds on the footing of the amended prayer of the plaintiffs the case is bound to have a new dimension requiring further probe into the allegations and counter-allegations of the parties. It is this that the Courts below have failed to do and it follows that the findings cannot be supported. The only order which the court can pass at this stage is an order of remand with the directions set out below and it is quite possible that this is the proper course to pursue. 9. The appeal is allowed and the judgment and decree of the Courts below are set aside, but in the circumstances, parties to bear their own costs throughout. The application for amendment under Order 6 Rule 17 Code filed by the plaintiffs on 21.1.78 is allowed. The case is remanded to the Munsif, 4th Court, Howrah for disposal of the suit according to law, The defendant may file additional written statement within four weeks from the date of receipt of the records by the Lower Court. The following two additional issues shall be framed by the court below. 1. "Was the transaction under the sale-deed ext. 2 an out and out sale or did the said sale-deed considered along with the deed of mortgage ext. 2A constitute a loan in substance? 2. Are the plaintiffs entitled to any relief under s. 37A of The Bengal Money Lenders Act, 1940 ? 10. 1. "Was the transaction under the sale-deed ext. 2 an out and out sale or did the said sale-deed considered along with the deed of mortgage ext. 2A constitute a loan in substance? 2. Are the plaintiffs entitled to any relief under s. 37A of The Bengal Money Lenders Act, 1940 ? 10. Both the parties will be at liberty to adduce fresh evidence-oral and documentary restricted to the averments made in the application for the amendment and the objection thereto. After conclusion of the evidence and after hearing the arguments of both the sides, the learned Munsif shall pass a judgment upon consideration of the evidence already on record and the evidence which might be put forth since the order of remand, regard being had to the appreciation of certain facts "noted in the preceding paragraphs. The suit should be disposed of expeditiously, preferably within six months from the date of the arrival of the records at the court of the Munsif. While passing this judgment we make it clear that we have not expressed any positive findings with regard to the issues framed in the suit. No formal decree need be drawn up. Shamsuddin Ahmed, J. : I agree. Appeal allowed; application for amendment allowed; Two new issues framed; Case remanded to the trial court with directions.