BALDEO RAM SALIGRAM PVT LTD v. BIMAL RANI KHANNAH — 1999 DIGILAW 221 (CAL)

D. B. DUTTA, J. ( 1 ) THE instant revision is directed against the order No. 19 dated 17. 3. 99 passed by the learned Additional District Judge, Second Court, Howrah in Title Appeal No. 158 of 1997 rejecting an application for amendment of a written statement. ( 2 ) THE opposite parties filed a suit being Title Suit No. 108 of 1978 against the petitioner for recovery of khas possession. The opposite parties' case may be stated as follows. The plaintiff opposite parties are the trustees of the Trust estate under a Deed of Trust settlement dated 15th July, 1946. The suit property belongs to the said Trust. By a registered deed of lease dated 11th May, 1957 executed by the then trustees and the defendant petitioner, the defendant was holding as a lessee of the suit property for a period of 16 years commencing from 1st October, 1956 at a monthly rent of Rs. 300/- payable according to English Calendar month. One of the terms of the lease provided for an option to the lessee for a fresh lease for a further period of five years on the expiry of the original term of 16 years. Before the expiry of the original term of the lease on 1st October, 1971, the defendant approached the plaintiff trustees for renewal of the said lease for a further period of five years and the plaintiff allowed the defendant to continue to be in possession on the expiry of the earlier term of the lease for a further period of five years. In spite of repeated demands, the defendants did not execute the formal lease in terms of the earlier lease. The lease thus expired by efflux of time on 1st October, 1977 and in terms of the lease, the defendant was under an obligation to deliver vacant and peaceful possession of the suit property to the plaintiffs on the expiry of the lease but they have failed to do so and have been wrongfully and illegally continuing in possession of the suit premises on and from 2nd October, 1977. ( 3 ) THE defendant petitioner contested the suit on filing a written statement. It denied the relationship of landlord and tenant between the parties. It also challenged the plaintiff's right to sue and the maintainability of the suit. ( 3 ) THE defendant petitioner contested the suit on filing a written statement. It denied the relationship of landlord and tenant between the parties. It also challenged the plaintiff's right to sue and the maintainability of the suit. It was contended, inter alia, by the defendant that it has been holding the premises in suit as a tenant under one Kartick Puja Trust Estate since October, 1972. The plaintiffs ceased to have any interest in the suit property. The plaintiff trustees of the Trust Estate which was created on the basis of the Deed of Trust dated 15th July, 1946 jointly represented to the defendant that ownership of the premises in suit vested in Kartick Puja Trust Estate on and from 2nd October, 1972 and directed the defendant to make payment of the rent to Kartick Puja Trust Estate and that in obedience to the said direction of the plaintiff trustees in relation to the suit property, the defendant has been making payment of the rent at the stipulated rate of Rs. 300/- per month only to the Kartick Puja Trust Estate. ( 4 ) DURING the trial of the suit, no oral or documentary evidence could be adduced by the defendant so as to substantiate its claim that the plaintiffs' right, title and interest over the suit property ceased to subsist on and from 1. 10. 72. No rent receipt also could be produced before the Court to substantiate its claim that it had been paying rent to Kartick Puja Trust Estate. The trial Court decreed the suit on 30. 7. 97 and the defendant preferred an appeal being Title Appeal 158 of 1997 against the judgment and decree of the trial Court. The appellant filed before the appellate Court on 22. 2. 99 an application under Order 6 Rule 17 read with section 151 of the CPC praying for certain amendments of the written statement alleging that due to inadvertence, certain important facts could not be pleaded in the written statement and that they are required to be pleaded for the purpose of enabling the Court to adjudicate the real matter in controversy. It was also alleged that the proposed amendment was formal in nature and it does not change the nature and character of the defence already taken by the appellant in the lower Court. It was also alleged that the proposed amendment was formal in nature and it does not change the nature and character of the defence already taken by the appellant in the lower Court. By the proposed amendment, the defendant appellant wanted to plead that the grant of rent receipts by Kartick Puja Trust Estate would tantamount to creation of a new tenancy in view of the fact that the rent receipt was granted in the name of Kartick Puja Trust Estate and the respondents had no right to institute the suit or to proceed further with the suit. It also wanted to plead that all the trustees had not been impleaded in the suit and the suit was accordingly bad for non-joinder of parties. Lastly, the defendant wanted to add by the proposed amendment that the original lease was granted for manufacturing purpose and in the absence of six months' notice the suit was liable to be dismissed. ( 5 ) UPON hearing the application for amendment, the lower appellate court by its impugned order was pleased to reject the amendment. In doing so, the lower appellate court was of the view that by the proposed amendment the appellant wanted to introduce new facts. Another reason that weighed with the learned lower appellate Court in rejecting the application for amendment was the delay in asking for this amendment. The suit was filed in the year 1979 and the defendant appellant came forward with this amendment after a long lapse of 20 years without explaining the reason for the delay. ( 6 ) IN challenging the legality of the impugned order, Mr. P. P. Banerjee, the learned counsel for the petitioner, urged that the learned Court below did not apply its mind to the defence already taken in the written statement and accordingly committed an error of law in coming to the conclusion that by the proposed amendment the defendant was making out a new case. It is also urged that the order of rejection of the amendment would suggest as if one of the grounds that prompted the Court below to reject it was that if the proposed amendment was allowed it would involve taking of additional evidence. Mr. Banerjee contended that this could not be a good ground for refusal to allow the amendment. Mr. Mr. Banerjee contended that this could not be a good ground for refusal to allow the amendment. Mr. Banerjee strenuously argued that the plea of creation of a new tenancy which is sought to be made by the proposed amendment would necessarily follow from the effect of the averments already made in the original written statement. It was contended on behalf of the petitioner that before filing the petition for amendment, the petitioner made an application before the appellate Court for taking additional evidence under Order 41 Rule 27 CPC; but the said application was not allowed and accordingly, the petitioner wanted to plead the legal effect of the averments already made in the written statement by way of amendment. As such, in the circumstances, it is submitted that the learned Court below acted illegally in rejecting the application for amendment. Mr. Banerjee cited certain decisions in support of his contention that the proposed amendment should have been allowed by the Court below. The decisions are reported in AIR 1979 Supreme Court 551: Ishwardas v. The State of Madhya Pradesh, 1981 (Supp) Supreme Court Cases 56: Rajendra Prasad v. Kayastha Pathshala, AIR 1960 Supreme Court 622: Nanduri Yogananda Ladshiminarasimhachari v. Agastheswaraswamivaru and Cal LT 1999 (1) HC 36: Nitya Narayan Sarkar v. Anandamoyee Dikpati. ( 7 ) MR. Subhra Kamal Mukherjee, the learned counsel for the opposite parties, on the other hand, relied on a Supreme Court decision in (1994) 2 Supreme Court Cases 29: Arundhati Mishra v. Sri Ram Charitra Pandey and contended that so far as the plea of tenancy for manufacturing purpose and requirement of service of six months notice is concerned, it was being introduced after a lapse of 20 years as a completely new case by way of amendment and as such these cannot be allowed particularly when there was an inordinate delay of 20 years without any explanation being offered. According to Mr. Mukherjee, besides the said plea of manufacturing purpose, the other amendments could be allowed because the necessary material on which those pleas relating to creation of a new tenancy under Kartick Puja Trust Estate or non-joinder of all the trustees were virtually already there in the original written statement. According to Mr. Mukherjee, besides the said plea of manufacturing purpose, the other amendments could be allowed because the necessary material on which those pleas relating to creation of a new tenancy under Kartick Puja Trust Estate or non-joinder of all the trustees were virtually already there in the original written statement. ( 8 ) IN AIR 1979 Supreme Court 551, the Supreme Court held that there is no legal basis for the assumption that a new plea cannot be permitted at the appeal stage unless all the material necessary to decide the plea was already/before the Court. The Supreme Court held:"there is no impediment or bar against an appellate Court permitting amendment of pleadings so as to enable party to raise a new plea. All that is necessary is that the appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally, one of the circumstances which will be taken into consideration before an 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 sought in the trial Court. If the necessary material on which the plea arising from the amendment may be decided is already there, the amendment may be more readily granted than otherwise. But, there is no prohibition against an appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the Court. " ( 9 ) INDEED, by the proposed amendments, so far as the pleas which are sought to be added in paragraphs 8 (a) and 8 (b) of the original written statement are concerned, the necessary material can be said to have been already there in the written statement. If that be so, there could be no objection to such amendment. That apart, relying on the above decision of the Supreme Court, I do not find any prohibition against the lower appellate Court permitting the addition of the said two paragraphs in the original written statement. ( 10 ) IN 1981 (Supp) Supreme Court Cases 56, during the pendency of a second appeal, the plaintiff appellant prayed for amendment of a memo of appeal as well as the plaint in view of certain amendment in law which came into force during the pendency of the appeal. ( 10 ) IN 1981 (Supp) Supreme Court Cases 56, during the pendency of a second appeal, the plaintiff appellant prayed for amendment of a memo of appeal as well as the plaint in view of certain amendment in law which came into force during the pendency of the appeal. But the amendment here is not at all occasioned by any amendment of law during the pendency of the appeal. As such, this decision is of no assistance to the petitioner. ( 11 ) IN AIR 1960 Supreme Court 622, an amendment was allowed by the High Court by addition of the prayer in the prayer clause. The Supreme Court held that the question of amendment was rightly decided by the High Court in as much as all the necessary allegations have been made in the plaint and the requisite pleas had been raised by the appellants, issue was framed on the question and the parties were fully cognizant of the points in controversy and the necessary evidence was also led by the parties. This decision is also of no help in deciding the question of allowing or refusing the amendment in so far as it relates to the new plea of tenancy for manufacturing purpose. ( 12 ) IN CAL LT 1999 (1) HC 36, a single Bench of our High Court reiterated the well settled principles that were laid down by the Supreme Court from time to time relating to amendments. One such principle is that the Court should be liberal in allowing the amendments unless serious injustice or irreparable loss is caused to the other side and the amendment does not amount to introducing a new cause of action and a new case in place of that which is pleaded in the original plaint. Another such principle is that event subsequent to the filling of the suit can be allowed to be incorporated by amendment to determine the real questions in controversy between the parties and also to avoid multiplicity of the proceedings. Here the proposed amendment in so far as it relates to the purpose of the tenancy is really intended to introduce a new case in place of what was pleaded and cannot be allowed without causing serious injustice and irreparable loss to the other side. As such, this decision does not really help the petitioner. Here the proposed amendment in so far as it relates to the purpose of the tenancy is really intended to introduce a new case in place of what was pleaded and cannot be allowed without causing serious injustice and irreparable loss to the other side. As such, this decision does not really help the petitioner. ( 13 ) IN (1994) 2 Supreme Court Cases 29, the Supreme Court reiterated the settled law relating to amendment at paragraph 3 thus :"amendment to written statement cannot be considered on the same principle as an amendment to the plaint. The pleas in the written statement may be alternative or on additional ground or to substitute the original plea. It is equally settled law that amendment of the pleadings could be made at any stage of the proceedings. Instances are not wanting that pleadings are permitted to be amended even when second appeal is pending. Equally, it was refused. . . . . . . . . . . . . . . . . . . . But each case depends upon its own facts. The essential requisites are that the delay in making the application; the reason therefore should be given and considered; and there should be no prejudice caused to the other side. " ( 14 ) IN the instant case, there is a delay of 20 years in making the application. The defendant appellant did not even care to give any reason for such delay for consideration of the Court below. Having regard to the nature and character of the proposed amendment which is sought to be introduced by adding paragraph 13 (a) in the original written statement, it must be held that if such an amendment is now allowed at this stage, there would be prejudice caused to the plaintiff opposite parties. Accordingly, the principle of liberally allowing the amendments of pleadings cannot be pressed into service in relation to this particular amendment. Accordingly, the principle of liberally allowing the amendments of pleadings cannot be pressed into service in relation to this particular amendment. ( 15 ) THUS, upon a careful consideration of the decisions cited on behalf of the parties in the light of the facts and circumstances revealed from the materials on record, I am of the view that the learned lower appellate Court was justified in refusing to allow paragraph 13 (a) to be added in the written statement and not the other two paragraphs such as paragraphs 8 (a) and 8 (b) as proposed in the application for amendment. In the result, the revisional application succeeds in part. The impugned order is set aside so far as it relates to refusal to allow the defendant appellant to add paragraphs 8 (a) and 8 (b) in the written statement as prayed for in the application for amendment. The lower appellate Court shall allow this part of the amendment to be made in the written statement and proceed to dispose of the appeal in accordance with law. The revisional application is thus disposed of on contest but in the circumstances without any cost. Urgent Xerox certified copy of this Judgment, if applied for, be given expeditiously. Application disposed of of.