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1995 DIGILAW 464 (CAL)

SK. Abdul Khalil v. Sk. Abdul Jallil

1995-12-21

S.Narayan

body1995
JUDGMENT S. Narayan, J. : This petition in revision is directed against Order No. 53 dated February 2nd, 1994 passed by Sri M. Mondal, Munsif 3rd Court at Tamluk in Title Suit No. 57 of 1991, whereby the Petitioner's prayer (of defendant No.2) for certain amendments in his written statement as also acceptance of a additional written statement as per his petitions dated 6.1.94 and 24.1.94 was rejected. 2. The relevant facts are as follows. The Plaintiffs/O.Ps. instituted the aforesaid suit bearing T.S. No. 57 of 1991 for declaration and for injunction in respect of the suit properties. The Plaintiffs claimed the properties by way of purchase as also by inheritance. The suit was contested by only defendant No. 2 (the petitioner) by filing a written statement, wherein it was contended that the sale deed dated 10.9.1971 through which the Plaintiffs claimed title was in fact not a transaction of sale rather it wad a transaction of loan-insubstance, with respect to which yet another title suit bearing No. 104 of 1991 had been instituted by the Defendant/Petitioner against the Plaintiffs/ O.Ps. and the same was still pending. The Defendant/Petitioner had, however, admitted in the original written statement that some other defendants, such as, defendant Nos. 3 and 4 been possessing lands, which they had acquired by way of inheritance. \ 3. Now, at about the close of the evidence, the Defendant/Petitioner moved the Trial Court for acceptance of an additional written statement as also deleting a sentence in paragraph 19 of the Original Written Statement. This amendment sought to delete an earlier contention of the defendant that defendant Nos. 3 and 4 had been in ownership and possession of certain properties received by way of inheritance and, as against that, some additional facts are sought to be pleaded such as that Defendant No.4, Hashna Banu sold her share, which she acquired by inheritance, to the Petitioner/Defendant No. 2 as also to defendant No. 1 through a registered sale deed dated 23.3.1981 and, subsequently, the defendant No. 1 sold his share, acquired through the aforesaid sale deed, to the Petitioner/Defendant No.2 through another sale deed dated 10.10.1982. and, accordingly, the Petitioner/ Defendant was in rightful ownership and possession over the property acquired by 'Defendant No.4, Hashna Banu, by way of inheritance. 4. The Plaintiffs/O.Ps. and, accordingly, the Petitioner/ Defendant was in rightful ownership and possession over the property acquired by 'Defendant No.4, Hashna Banu, by way of inheritance. 4. The Plaintiffs/O.Ps. contended that the amendments as proposed were tantamount to introduce certain new facts, which were contrary to the earlier pleadings in the original written statement. A plea of mala fide also has been raised against the proposed amendments. 5. In order to better appreciate the contentions of the parties, it is immensely significant to point out that some facts in the back drop were like that the suit properties devolved upon the plaintiffs and the defendants by way of inheritance and, after such devolution there were certain transactions inter se between the parties and this led to certain conflicts of interest between the Plaintiffs and Defendant No. 2 over some portion of such properties. One or the other sale deeds executed by the decendents of the common ancestor had probably given rise to dispute; and those documents have to be construed in right perspective so as to determine the right, title and interest in the properties devolved as such. Whereas the Plaintiffs/O.Ps. appear to have based their claim on the sale deed dated 20.4.1981, executed by the Petitioner/Defendant No. 2 with respect to some portion of the properties acquired by way of inheritance, on the other side, the said sale deed is alleged to be a transaction of loan-in-substance. What the proposed amendments seek to introduce was that there were some other transactions of sale between the decendents of the common ancestor and those were, first, through the sale deed dated 23.3.1981 executed by Defendant No.4, Hashna Banu in favour of the Petitioner/Defendant NO.2 and Defendant No. 1 and yet another dated 10.10.1982 executed by Defendant No. 1 in favour of Defendant No.2. 6. It is true that the facts with regard to the two sale deeds dated 23.3.1981 and 10.10.1982 were contrary to the earlier averment in the original written statement, which simply depicted that Defendant Nos. 3 and 4, were still in possession over the lands they acquired by way of inheritance. Be that as it may, the fact remains that the real question in controversy between the parties was regard to actual state of affairs as a result of the inheritance of the property from the common ancestor and thereafter on certain transactions of sale between those decendents. Be that as it may, the fact remains that the real question in controversy between the parties was regard to actual state of affairs as a result of the inheritance of the property from the common ancestor and thereafter on certain transactions of sale between those decendents. That being as such, the .amendment as sought for in the written statement, by deleting some portion of the original written statement and introducing some new facts through additional written statement was not going to actually change the cause of action or the nature of the suit. It may not be out of place to point out that a defendant in a suit had right to raise an alternative plea to oppose the claim of right, title and interest of the plaintiff. Hence, even in that view of the matter also if two alternative plea of defence are allowed to exist on the record of the instant case, that would not cause any material prejudice to the Plaintiffs/O.Ps. 7. It would however be derived from the impugned order that the prayer for amendments was refused mainly on the ground that those amendments were by way of departure from earlier admission in the original written statement. Probably, the Learned Trial Court was under the impression that certain advantage has been acquired by the Plaintiffs because of admissions in the written statement and that should not be wiped out. In this context, it must however be taken note of the legal proposition that a decision in civil proceeding can not be based simply on certain admission, rather it would be the totality of the entire facts and circumstance emerging from the oral and documentary evidence that a conclusion has to be drawn up. Since the law as framed in Order 6 Rule 17 of the CPC did permit Court to alter or amend the pleadings at any stage of the proceeding to secure determination of the real question-in-controversy between the parties, the Court should be liberal while considering such prayer. One slip-shod here or there in the pleadings of the either side should not be made a basis for a decision. It was only the totality of the pleadings and the evidence on the record, which had to be ultimately given an effect to determine the real controversy between the parties and also to avoid multiplicity of suits between them. One slip-shod here or there in the pleadings of the either side should not be made a basis for a decision. It was only the totality of the pleadings and the evidence on the record, which had to be ultimately given an effect to determine the real controversy between the parties and also to avoid multiplicity of suits between them. Thus the relevancy of the two registered sale deeds as referred to in the additional written statements may have to be considered in the same suit. 8. A question would of course arise as to the alleged mala fide of the Defendant/Petitioner, who has come forward for the amendments at a belated stage and who had prior knowledge of the facts, sought to be altered or introduced. So far the delay was concerned, the case law has set at rest that the amendment can even be made at the stage of appeal. In the instant case, the amendments have been sought for at the close of the evidence but certainly before the argument in the suit. A remedy was there to provide an opportunity to the Plaintiffs/O.Ps. to move for addition of acts in the plaint and to adduce fresh evidence on the point after the amendments in the written statement are allowed. A suitable order to compensate the inconvenience can also be passed by imposing costs on the Defendant/Petitioner on that account. 9. As to the alleged mala fide on the part of the Defendant/Petitioner, suffice it to mention that the parties to the suit were decendents of a common ancestor and whatever had happened with regard to the transfer of their respective interest after the devolution of the property was not a surprising event and one can, in an ordinary course, impute knowledge of such happenings, subject to denial by one or the other member of family. In this view of the matter, there appears no reasons why the Defendant/Petitioner would act mala fide in purposely concealing certain facts, which had nexus to the actual controversy between the parties. Therefore, in my opinion, the Defendant/Petitioner does not. appear to have acted in any manner, so as to establish on the record that there was mala fide on his part. 10. Therefore, in my opinion, the Defendant/Petitioner does not. appear to have acted in any manner, so as to establish on the record that there was mala fide on his part. 10. The view as taken above would find sustenance from the principles laid down in the decision of this Court in the case of Shyamal Mitra Mustaffi vs. J.G. Saggi reported in 1988(2) CLJ 429, of the Gujarat High Court in the case of Jawarmal Ramkaran vs. Pari Keshab Lal Jamuna Das reported in AIR 1990 Guj 42 , and also in the case of Raineshbhai Maganbhai Patel vs. Keshab Kumar Denesh Kant Patel, reported in the AIR 1995 Guj 130 . The Principles laid down in these decisions were in favour of granting amendments, so as to introduce even fresh facts having reasonable and substantial nexus with the matter in issue between the parties and even at a later stage of the hearing. The procedural technicalities have been considered not that much material as was the determination of the real question of controversy between the parties avoiding multiplicity of the suit. I would therefore, prefer to bank upon these decisions, so as to take a view in favour of granting the amendments in the written statements as sought for by the Defendant/Petitioner. 11. On the other side i.e. on behalf of the Plaintiffs/O.Ps., my attention was of course, drawn to this decision of the Allahabad High Court in the case of Sant Ram Agarwal vs. Civil Judge, Mohanlal Ganj, Lucknow & Ors. reported in AIR 1994 All 99 . The decision of the Allahabad High Court, of course, suggested an out-line that amendment of certain facts being all within the knowledge of a party and sought at belated stage should not be allowed. But in this very decision there was also an indication that an amendment, even sought at belated stage, may be allowed, if it can be made without injustice to the other side. In any view of the matter, the ratio of this decision does not appear to be applicable in the instant case. 12. Regard being had to the facts and the circumstance of the case I don't find myself in agreement with the decision of learned Court below as recorded in the impugned order. In any view of the matter, the ratio of this decision does not appear to be applicable in the instant case. 12. Regard being had to the facts and the circumstance of the case I don't find myself in agreement with the decision of learned Court below as recorded in the impugned order. The order is not sustainable in view of what has been noticed above and, accordingly, it is liable to be set aside. This revisional petition is, therefore, allowed with the direction that the amendments in the written statement as sought for on behalf of the Defendant/Petitioner be allowed subject to payment of consolidated costs of Rs. 500/- as also with liberty to the Plaintiffs O.Ps. to amend or alter the plaint with regard to the portion of the written statement as also to adduce further evidence, if so required, in accordance with law. There shall be no order as to further costs. Application allowed.