Jabeda Khatoon v. Kaiser Bux @ Kalimuddin — 1995 DIGILAW 291 (CAL)

JUDGMENT S. Narayan, J.: This petition under s. 115 of the CPC has been directed against the order dated 5.11.90 passed by the Munsif, 1st Court, at Alipore, District-24 (S) in Title Suit No. 73/1986, whereby the plaintiff's prayer for amendment in the plaint was refused. 2. The amendment of pleadings has always been taken as a hurdle in the proceedings by a contesting party and, therefore, any prayer as such is very often objected to on one or the other ground. It is objected on many accounts such as change in the nature and character of the suit, defuse of legal right already accrued by admission or lapse of time, inconsistency in the pleadings, mala fide, unconscionable delay or gross laches, etc. This has given rise to various decisions given by the Supreme Court and the High Courts from time to time. All these authorities or deciding ratio in context of certain given facts, however, centred around the hard and fast rule as laid down under Order 6, Rule 17, which has prescribed that a Court may, at any stage of the proceeding, allow either party to alter or amend his pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the question in controversy between the parties. So the real spirit of law, which can be taken as almost mandatory, is that all such amendments must be allowed which may be deemed necessary in context of the factual score of a particular case for the purpose of determining the real questions in controversy between the parties. 3. In the instant case what has weighed with the Court below to reject the prayer for amendment was only this much that the amendment sought for by substituting one of the reliefs in the suit would completely change the nature of the suit. 3. In the instant case what has weighed with the Court below to reject the prayer for amendment was only this much that the amendment sought for by substituting one of the reliefs in the suit would completely change the nature of the suit. The relevant extract of the impugned order may be quoted as below: "From the manner of amendment sought for it is found that the prayer of the plaintiff in prayer 'A' in the plaint will completely change the nature of the suit and the reliefs sought for and in that event, I am convinced by the argument advanced by the learned Counsel for the defendant and, accordingly, I am not inclined to entertain the instant/application for amendment of the plaint." 4. At this juncture I would like to place on the record the gist of the plaintiff's case, which was almost common in the original plaint and the amendment petition. One Karim Bux died intestate on or about 31st May, 1975, leaving behind him his widow Jebanisha Begum (not party in original plaint), his son (defendant No.1) and his five daughters (i.e., plaintiff and defendant Nos. 2 to 5). The properties, left behind by Karim Bux as intestate, were the subject-matter of the suit. The properties in the suit had been acquired by Karim Bux; and the business in some rented portion of the suit property was also his self-acquired property. The acquisition of the property had been made during the period when the defendant No.1 (the contesting defendant) was a minor and was also not an earning member of the family. Some pukka-constructions on the land in dispute had also been raised after the death of Karim Bux from the fund of the joint business as also with certain contribution made by the widow (wife of Karim Bux). 5. Let me now refer to what amendments were amendments were actually sought for in the plaint. First, I find that one of the reliefs in the suit at item no. 'A' is sought to be substituted as narrated hereinafter. 5. Let me now refer to what amendments were amendments were actually sought for in the plaint. First, I find that one of the reliefs in the suit at item no. 'A' is sought to be substituted as narrated hereinafter. In original plaint, the relief as item No. 'A' was for a declaration that all the properties as left intestate and more fully described in the schedule (of the plaint) including the properties in the name of the defendant No. 1 were the personal and the self-acquired properties of the deceased Karim Bux as sole and absolute owner thereto in his 16 annas. This is sought to be deleted and substituted by a declaration that the plaintiff is the co-sharer in joint possession of the Schedule 'A' property described in schedule (of the plaint) with the defendants (i.e., widow of Karim Bux). 6. As observed by the Court below the above amendment as to relief No. 'A' of the plaint would change the nature of the suit and, for this sole reason, the prayer for amendment was refused by the impugned order. I am, however, unable to agree with this observation of the Court below for the simple reason that the other relief at item No. 'B' of the original plaint was almost to the same effect in as much as that was "for a declaration that the plaintiff was and/or is one of the joint co-owners to the said properties, more fully described in the schedule (of the plaint) as left intestate by the said Karim Bux since the date of his death". So the amendment at relief No. 'A' was more or less the same as already incorporated at relief No. 'B' of the original plaint. In any view of the matter, it is pertinent to note that the real controversy between the parties with respect to the suit properties was whether those were the exclusive properties of the defendant No.1, i.e., the son of the deceased Karim Bux or were the joint properties of all the heirs and legal representative of the said Karim Bux including the plaintiff and defendant Nos. 2 to 5 as also the widow of the said Karim Bux. If that be deemed to be the real controversy, the amendment in the relief of the plaint as sought for by the plaintiff was, definitely, not going to change the nature of the suit. 2 to 5 as also the widow of the said Karim Bux. If that be deemed to be the real controversy, the amendment in the relief of the plaint as sought for by the plaintiff was, definitely, not going to change the nature of the suit. 7. Even assuming for the sake of argument as advanced on behalf of the defendant/opposite party that the amendment as sought for would change the character of the suit, it would not be out of place to observe here that even this rule of law was not hard and fast, rather, it was flexible. Flexible, in the sense that, depending upon the individual facts of a case, even such amendments can be allowed to avoid multiplicity of the suits and for the purpose of determining the real question in controversy between the parties. So far the instant case was concerned, it has been already noticed above that what was the real controversy between the parties and, therefore, in that view of the matter, the amendments as sought for were needed to be incorporated for full and complete adjudication of the real controversy in the suit. 8. The other amendment as sought for was that in the original plaint it had been mentioned that Karim Bux had kept certain properties in the benami of the defendant No. 1 (his son), who was then a minor. The word benami is sought to be deleted and in its place the words "purchased vacant land in the name of defendant No. 1” are sought to be introduced. Whatever may be the words used, the tenor of the whole case of the plaintiff was that the suit properties were the self-acquired properties of Karim Bux and those were to devolve on all his heirs. This amendment, possibly, had some purpose behind. Till very recently, the mischief of the new enactment of the Benami Prohibition Act, 1987 was troubling the mind of the litigants very much because of the legal bar against certain claim. This enactment was earlier taken to have retrospective effect but, subsequently, by a decision of the Supreme Court reported in 1995 (2) SCC 650 the matter has been set at rest, and now the above enactment shall not have retrospective effect. This enactment was earlier taken to have retrospective effect but, subsequently, by a decision of the Supreme Court reported in 1995 (2) SCC 650 the matter has been set at rest, and now the above enactment shall not have retrospective effect. Probably, in the instant case also something might haunted in the mind of the plaintiff under certain legal advice that the word benami acquisition in the name of the defendant No.1 may stand in his way. This technical aspect of the matter will, however, not change the nature and character of the suit and, definitely, no legal right had accrued to the defendant merely by such averment in the original plaint and, that being as such, I do not think that it would be desirable in the eye of law to refuse the said amendment as sought for. 9. Yet another amendment sought for was by way of introducing a paragraph as paragraph No. 2A in the plaint. This paragraph simply elaborates the fact that the defendant No. 1 had no source of income when the vacant land of schedule 'A' was purchased in his name from the source of his father business and further that after the death of his father i.e., Karim Bux, the building over it was constructed from the family business i.e., the grocery shop as also of certain contributions made by the widow of Karim Bux. The learned Counsel appearing on behalf of the contesting defendant No. 1/O.P urged before me that the introduction of paragraph 2A would change the nature of the suit and also that it was rather mala fide on the part of the plaintiff to introduce such facts in the suit. In this context, some reported authorities like, AIR 1986 Cal 113 , AIR 1961 Pat 298 , AIR 1965 SC 1008 , and AIR 1988 Him Pra 27 were cited. On the basis of these authorities, the broad legal proposition certainly stands confirmed that the amendment in the pleading should not all together change the nature and character of the suit and that the amendment should also not be mala fide rather the pulse of bona fide must be present therein. I do not purpose to traverse these legal propositions and, in fact, the factual score of the instant case as noticed above has been taken into account to test the merit of the amendment sought for. I do not purpose to traverse these legal propositions and, in fact, the factual score of the instant case as noticed above has been taken into account to test the merit of the amendment sought for. Even the Court below has not expressed himself in the impugned order that the introduction of paragraph 2A would change the nature of the suit or that it was mala fide. In his opinion, it was only the relief portion of the plaint sought to be amended which was taken as tantamount to change the nature of the suit. The Court below was not at all of the opinion that the amendment as sought for were mala fide. Even during the course of the instant revisional proceeding I could not be convinced of any such allegation. 10. The last feather of the amendment as sought for in the plaint was simply to add as proforma defendant the name of Jebaness Begum, widow of the above-named Karim Bux, who is said to have died intestate are leaving behind the suit properties. The inclusion of her name as proforma defendant appeared to be quite natural and formal. On the facts and in the nature of the case as pleaded on behalf of the plaintiff. 11. An alternative argument advanced on behalf of the contesting defendant No. 1/O.P. was that the amendment sought for were useless and of no substance and in that view of the matter also, those need not be allowed. This argument, however, runs contrary to what has been urged above on his behalf, I am unable to concur with this alternative submission made by the learned Counsel for the defendant/O.P. 12. In the premises, I am of the considered opinion that the court below has not been able to exercise his jurisdiction in proper perspective and that the refusal of the amendments as sought for in the plaint was tantamount to some sort of material irregularity. The instant petition-in-revision, therefore, succeeds. The impugned order is set aside. The Court below will proceed to direct the amendments as sought for in the plaint to be incorporated subject to payment of cost of Rs. 100/- to the contesting defendant/O.P. who would be also entitled to file an additional written statement if so advised. There shall be no order as to further costs. Application allowed.