Research › Browse › Judgment

Gauhati High Court · body

1998 DIGILAW 317 (GAU)

Sunil Chandra Sarkar v. Manik Sarkar and Another

1998-11-03

N.SURJAMANI SINGH

body1998
The order dated 5.6.98 passed by the learned Civil Judge (Junior Division) Sonamura, West Tripura in case No. TS 32 of 89 rejecting the prayer of the petitioner for amendment of the plaint dated 24.4.98 is a subject matter under challenge in this civil revision. 2. I have heard Mr. KN Bhattacharjee, learned senior counsel assisted by Mr. SB Dutta, learned counsel and also Mr. RC Debnath, learned counsel for the respondents. 3. At very outset, Mr. KN Bhattacharjee, learned senior counsel for the petitioner argued that the learned Court below ought to have allowed the amendment petition inasmuch as by allowing such amendment of the plaint no character of the suit shall be changed. Apart from it, the proposed amendment of the plaint is very much essential and material for just and proper determination of the real points in controversy between the parties in the instant case and as such the petitioner-plaintiff had no other alternative but to file an amendment petition before the learned Court below in view of the subsequent development of the case during the pendency of the original suit before the trial Court. Though the case has been pending since a pretty long time, certain development has already come e up as for an instance, the case of the petitioner-plaintiff was decreed by the trial Court as well as the judgment and decree was affirmed by the first appellate Court. Thereafter, on the motion of the defendant-respondent by way of second appeal being SA No.25 of 1989, this Court set aside the judgment and decree of the learned Courts below under the related order of 9.12.96 and made the following observations and directions: "In view of the facts and circumstances I also feel that to arrive at a correct decision of the suit a Survey Commissioner should be appointed to submit his report after determining the following points, namely, (1) the location of Original Jote No. 235 of Mouja Nabadwip Chandra Nagar. Survey Commissioner will have to ascertain the total quantity of the land of Original Jote No. 235 of Mouja Nabadwip Chandra Nagar and he will have to show the land in the map with demarcation line: (2) The Survey Commissioner will have to ascertain the CS Plot Nos under which the total quantity of the land of Jote No.235 of Mouja Nabadwip Chandra Nagar was measured. He is to indicate each plot and its quantity; (3) The Survey Commissioner is to ascertain the location of land measuring 0.11 acres which was acquired by ths Govt through PWD in the year 1963. After ascertaining the said points the Survey Commissioner is to show the exact position of the suit land with red ink. The result is that the appeal is allowed and the judgment and decree of the learned Courts below are set aside. The case is remanded to the Court of learned Civil Judge, Junior Division, Sonamura to readmit the suit under its original number a in the register of civil suits and proceed to determine the suit and the evidence recorded during the original trial shall subject to all just exceptions, be evidence during the trial after remand and that he should dispose of the suit after getting the Survey Commissioner's report who is to determine the points as mentioned above. The parties will be allowed to adduce further evidence. The trial Court is further directed to dispose of the suit with expedition preferably within a period of four (4) months from the date of receipt of the records. Transmit the records to the trial Court immediately with a copy of the judgment." It is also contended by Mr. Bhattacharjee that the defendants filed amendment petition for amendment of their written statement in the year 1996 while the said second appeal was pending before this Court and this Court allowed the same. According to Mr. Bhattacharjee, the defendant-respondents by way of amendment of the written statement had taken certain pleas for which the plaintiff-petitioner required to amend his plaint and accordingly the plaintiff-petitioner filed the said amendment petition. 4. At the hearing Mr. RC Debnath learned counsel for the defendant-respondents argued that the plaintiff-petitioner had failed to present or file amendment petition for amendment of his plaint when the said second appeal was pending before this Court. But the plaintiff-petitioner filed the said amendment petition even after the report of the Survey Commissioner was accepted by the learned trial Court and, that the appointment of Survey Commissioner and submission of his report was made as per the order dated 9.12.96 passed by this Court in the aforementioned second appeal. According to Mr. But the plaintiff-petitioner filed the said amendment petition even after the report of the Survey Commissioner was accepted by the learned trial Court and, that the appointment of Survey Commissioner and submission of his report was made as per the order dated 9.12.96 passed by this Court in the aforementioned second appeal. According to Mr. Debnath, the plaintiff-petitioner in the guise of amending the plaint unnecessary delayed the proceedings of the suit and apart from it, the amendment petition has no reasonable basis. Mr. Debnath also contended that if the amendment petition is allowed all settled things will be unsettled and as such the learned trial Court rightly opined and made the observation under his impugned orders that there is also no irregularity or incorrectness or illegality in the impugned orders. Relying upon the decision of the Apex Court rendered in the case of Sher Singh (dead) through L. Rs vs. Joint Director of Consolidation & others reported in AIR 1978 SC 1341 . Mr. Debnath argued that even the erroneous decision on the question of fact or law having no relation to the question of jurisdiction of the subordinate Court cannot be corrected. I am in full agreement with the submission of Mr. Debnath on this legal point. Over and above this, Court is now also highlighting another decision of the Apex Court rendered in the case of the Managing Director (MIG) Hindustan Aeronautics Ltd, Balanagar, Hyderabad & another vs. Ajit Prasad Tarway, Manager (Purchase and Stores), Hindustan Aeronautics Ltd, Balanagar, Hyderabad reported in AIR 1973 SC 76 wherein the Apex Court held that the High Court shall not interfere with the lower appellate Court's order even if the order is right or wrong or in accordance with law or not, unless it was acted illegally or with material irregularity. Now, this Court is to see only as to whether the trial Court had acted illegally or with material irregularity in exercising its jurisdiction or, has failed to exercise the jurisdiction so vested or has exercised the jurisdiction not vested in it by law while passing the impugned order. Now, this Court is to see only as to whether the trial Court had acted illegally or with material irregularity in exercising its jurisdiction or, has failed to exercise the jurisdiction so vested or has exercised the jurisdiction not vested in it by law while passing the impugned order. It is true that there may be erroneous decision of the Courts below on a question of fact or of law, but if it has no relation to the question of jurisdiction, the High Court cannot interfere with such erroneous decision or wrong order while exercising its jurisdiction under section 115 CPC. 5. The learned trial Court rejected the prayer for amendment of the plaint only on the ground that plaintiff desires to change the quantum of land from 0.11 acres to 0.12 acres and as such, so to change to quantum of the suit land in disguise changes the nature and character of the suit land. This Court do not at all agree with this finding. This is erroneous and illegal finding and rather the trial Court acted with material irregularity and illegality while making its observations for which I made the following reasons : (I) The plaintiff-petitioner described in his plaint that the area of the suit land measured 0.11 acres as seen from the related paper book prepared in connection with the Second Appeal No. 25 of 1989 as produced by Mr. KN Bhattacharjee, learned counsel for the petitioner-plaintiff before the Court today at the time of hearing of this case and it is an admitted position rather which cannot be denied by the respondent-defendants or by his counsel Mr. RC Debnath. Therefore, it isclear that the land measuring 0.23 acres which the petitioner plaintiff claimed that it belonged to him covering the total area of 0.12 acres including the originalsuit land described by the plaintiff in his plaint. According to the plaintiff-petitioner, the defendant-respondents had already encroached upon the land measuring 0.12 acres during the pendency of the case and as such he required to amend his plaint. According to the plaintiff-petitioner, the defendant-respondents had already encroached upon the land measuring 0.12 acres during the pendency of the case and as such he required to amend his plaint. (II) There is no bar on the part of the plaintiff to seek for amendment of his plaint when the defendants started encroaching upon the larger quantum of area of land over and above, the original suit land described in the plaint and as such no question of change of nature and character of this suit shall arise at all in the instant case. 6. The learned trial Court also opined that the plaintiff by way of amendment of the plaint wants to unsettle the settled facts which is not permissible and if the amendment is allowed the settled facts will be unsettled; and further opined that the plaintiff is killing time unnecessarily and has taken 'sleep of Kumvakarna' which according to me it is too much for the trial Court for which this Court expresses its displeasure with the presiding Civil Judge (Junior Division), the trial Court. The Court always should maintain its dignity and should not always use or reproduce harsh and diseordiant words while rendering justice to all. 7. It is also an admitted position that during the pendency of the second appeal, the defendants made many averments and pleadings by way of amendment which has also been allowed by this Court; so why the petition for amendment of the plaint sought for by the plaintiff should not be allowed. Law is settled by the Apex Court in the matter and the related decision finds its place in a case between M/s Ganesh Trading Co vs. Moji Ram reported in AIR 1978 SC 484 wherein the Apex Court held as follows: "2. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so that it may be met, to enable Courts to determine what is really at issue between parties, and to prevent deviation from the course which litigation on particular causes of action must take." 8. The amendment petition was also filed by the plaintiff before the plaintiff adduced further evidence as this Court by the aforesaid order dated 9.12.96 allowed the parties to adduce further evidence. 9. The amendment petition was also filed by the plaintiff before the plaintiff adduced further evidence as this Court by the aforesaid order dated 9.12.96 allowed the parties to adduce further evidence. 9. It is also well settled principles of law that even the inconsistent pleas can be explained or can be pleaded by way of amendment. But the fact of substitution or the relation of certain admitted facts from the pleadings in order to displace a party to the suit completely from such admissions made by the other party in his or her pleadings, is not permitted under the law. This established principle of law finds its place in a decision of the Apex Court rendered in the case of M/s Modi Spinning and Weaving Mills Co Ltd & another vs. M/s Ladha Ram & Co reported in AIR 1977 SC 680 . By applying this established principle of law, this Court also laid down certain principles of law within the purview of Order VI Rule 17 CPC and this principle of law finds its place in a case between Chongtham Gulamani Singh vs. Koijam Ibotombi Singh reported in 1996 (II) GLT 275 (1996 (2) GLJ 92). 10. Applying all the established principles of law laid down by the Apex Court as well as by this Court and also considering the submissions advanced by the learned counsel of both sides, I am of the view that the petitioner-plaintiff has made out a case to justify the interference with the impugned order and accordingly, (the impugned order dated 5.6.98 passed by the Civil Judge (Junior Division),, Sonamura, West Tripura in TS No.32 of 79 is set aside. Interim stay order, if , any, is hereby merged with this judgment and order. 11. For the reasons, observations and discussions made above this revision petition is allowed, but no costs.