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1995 DIGILAW 355 (CAL)

KAMALA BALA BISWAS v. KALACHAND SARKAR

1995-09-15

P.S.NARAYANA

body1995
P. S. NARAYANA, J. ( 1 ) THIS Revisional Petition is directed against Order No. 10 dated 18-3-1994 Passed by the Asstt. District Judge, Ranaghat in Title Appeal No. 50 of 1993 which arised of Title Suit No. 8 of 1992 of the Court of Additional Munsif, Ranaghat. By this impugned Order, the Plaintiff / Appellant's prayer for amendment of the plaint at the stage of the Appeal was rejected. ( 2 ) THE Petitioner before this Court, being the Plaintiff/ Appellant, had brought a Suit for eviction of the Defendant / O. P. on the ground of default in payment of rent as also on the ground of reasonable requirement of the suit premises. The Suit, however, failed on both the counts and, accordingly, there was an Order of dismissal of the Suit as per judgment passed on March 30, 1993 by the trial Court. Thereupon, there was an Appeal filed against the judgment and the decree passed by the trial Court. During the course of the Appeal, the Plaintiff/ Appellant filed a Petition dated January 19, 1994 under Order 6, Rule 17 of the C. P. C. praying to amend the Plaint by deleting one or the other paragraphs of original Plaint and substituting those with some additional paragraphs therein by way of amendment. At this juncture, it may first be pointed out that as per the case pleaded in the Original Plaint, the Plaintiff/ Appellant had contended that the Suit premises was a part and parcel of her residential building and that she required the Suit premises for residential purpose in as much as the accommodation already available to her was not sufficient as per her reasonable requirement which existed at the time of the institution of the suit. By virtue of the amendment as sought for, the main thrust of the pleading has been shifted from the requirement of residential purpose to that of suitable accommodation for a Primary School being run by her grandson. The family set-up of the Plaintiff is also sought to be altered by the proposed amendment. By virtue of the amendment as sought for, the main thrust of the pleading has been shifted from the requirement of residential purpose to that of suitable accommodation for a Primary School being run by her grandson. The family set-up of the Plaintiff is also sought to be altered by the proposed amendment. ( 3 ) THE amendment as sought for by the Plaintiff/ Appellant was vehemently objected to on behalf of the Defendant / O. P. mainly on the ground that the proposed amendments would change the nature of the Suit with certain new facts which, if allowed, would cause serious injustice to the defence and further that the delay occurred in the alleged amendment has not been properly explained by the Plaintiff/ Appellant. ( 4 ) BEFORE I look into the merits of the impugned order, it is apt to point out that the Provisions of Law under Order 6, Rule 17 of the C. P. C. is very wide and the Court can allow amendment of pleadings even at the appellate stage for the purpose of determining the real question in controversy between the parties but the judicial pronouncement from time-to-time have also laid down certain criteria so as to determine whether a particular amendment in the pleading, depending upon individual facts of a particular case, should be allowed or not. I may put emphasis on the point that simply because an amendment or alteration in the pleading is sought for at the stage of the Appeal, it can't be refused on the score alone. It was quite open for the party seeking amendment in the pleading to explain the delay as to why such amendment was not sought for at the stage of the trial Court. It would be apposite to refer to the decision of the Supreme Court in Ishwar Das v. State of Madhya Pradesh, reported in AIR 1979 SC 551 . In that case, it was held that there is no impediment or bar against an Appellate Court directing amendment of pleadings so as to enable a party to raise a new plea, but it was necessary that the Appellate Court should observe certain principle subject to which amendments of pleadings are to be granted. In that case, it was held that there is no impediment or bar against an Appellate Court directing amendment of pleadings so as to enable a party to raise a new plea, but it was necessary that the Appellate Court should observe certain principle subject to which amendments of pleadings are to be granted. It was further held in the aforesaid case that one of the circumstances which should be taken into consideration before amendment is granted, is the delay in making the application seeking such amendment and if made at the Appellate stage, the reason why it was not made in the trial Court? ( 5 ) IN the backdrop of what has been seen above, it may be mentioned that, in the instant case, there is no explanation offered as to why there was such delay in making prayer for amendment in the Plaint and as to why not such prayer was made in course of the trial. On the contrary, it was significant to note that the relevant facts, which are now sought to be introduced by way of amendment in the Plaint, were gone into during the course of the trial. The Plaintiff / Appellant wanted to introduce in the Plaint that there existed a school of pre-Primary stage in some portions of the suit building and now, due to the paucity of the accommodation some more space was required by the grandson of the Plaintiff so as to open some new classes of primary-stage in that very school. The fact with regard to the existence of the School was actually pleaded by way of defence on behalf of the Defendant / O. P. against the Plaintiff's claim of requirement of their tenanted portion for her residential purpose. The point was extensively dealt with in the Judgment of the trial Court while pointing out that there was admission on behalf of the Plaintiff that an English Medium School in the name of Juvilian Academic had been inducted in some portion of the Suit building by the Plaintiff. The point was extensively dealt with in the Judgment of the trial Court while pointing out that there was admission on behalf of the Plaintiff that an English Medium School in the name of Juvilian Academic had been inducted in some portion of the Suit building by the Plaintiff. That being as such, the facts with regard to the existence of the School or any reasonable requirement for additional accommodation for running the said School was very much in the know of the Plaintiff and it was thus open for the Plaintiff to have introduced those facts right at the stage of the Trial when some such facts were being examined for necessary adjudication in the Suit. The Plaintiff / Appellant thus appears to have wilfully and deliberately neglected to introduce those facts at the stage of the Trial and, in any view of the matter, there was no explanation offered by or on behalf of the Plaintiff/ Appellant as to why those facts were not introduced by amendment in the Plaint at the stage of the Trial. Thus, for the reason of the delay and that too, with no explanation offered for the same it would not be just and proper to allow the amendment as sought for at the stage of the appeal. ( 6 ) THERE was yet another view of the matter; and that was with regard to the legal proposition that a Court should be liberal in granting amendment of pleadings so as to achieve the purpose of determining the real question in controversy between the parties. This was, however, subject to consideration of the facts that no such amendment should be allowed, so as to cause serious injustice or irreparable loss to the other side. In this context, reliance can be placed on the decision of the Supreme Court in Hari Das Ali Das v. Godrej, AIR 1983 SC 319 . The Supreme Court has abundantly made it clear that no amendment should be allowed so as to cause serious injustice or irreparable loss to the other side. In the instant case, the learned Assistant District Judge, Ranaghat, while refusing the prayer for amendment has observed that if the proposed amendment was allowed, it would cause serious injustice to the defence, which can't be compensated by costs. In the instant case, the learned Assistant District Judge, Ranaghat, while refusing the prayer for amendment has observed that if the proposed amendment was allowed, it would cause serious injustice to the defence, which can't be compensated by costs. What was relevant to point out in this context was that one would be led to an impression on an overall appreciation of the facts that the Plaintiff earlier came up with a case that the suit premises under the Tenancy of Defendant / O. P. was required by her for residential accommodation, but during the course of Trial, the Defendants /o. Ps. took up a plea that the portion under their tenancy was not fit for residential purpose and the same could be only used for running a Shop and further that the Plaintiff had enough of accommodation for residential purpose elsewhere and further that during the pendency of the suit some portion of the Suit building was inducted for running a School. Such defence was set up by way of rebuttal to the Plaintiff's case of reasonable requirement for residential purpose. Now, when the Plaintiff's stand in the Trial Court as per the case in the Original Plaint has failed and it was abundantly established on the record that the defence as set up by the Defendants would falsify the Plaintiff's case of reasonable requirement, there was an attempt made by the Plaintiff / Appellant at the stage of the Appeal to set up a new case for reasonable requirement of the Suit premises for the purpose of the School accommodation. The new case as set up by the Plaintiff runs counter to the earlier case of reasonable requirement and, in that way, if such amendment is allowed, that would certainly take away the effect of the defence as set up by the Defendant. This sort of approach on behalf of the Plaintiff/ Appellant can't be considered to be a bona fide one and, if that is taken into account in the light of the deliberate neglect to introduce such amendment at the stage of the Trial, it has got to be hold that there was an element of mala fide therein. ( 7 ) IN the premise as also in view of the matter as rightly appreciated by the Appellate Court, I do not find any sufficient ground so at to interfere with the impugned order. ( 7 ) IN the premise as also in view of the matter as rightly appreciated by the Appellate Court, I do not find any sufficient ground so at to interfere with the impugned order. This revision thus appears to have no merit and, accordingly, it is dismissed. There shall be no order as to costs. Revision dismissed.