Research › Search › Judgment

Calcutta High Court · body

2001 DIGILAW 712 (CAL)

Subhra Chakraborty v. Nripendra Kumar Saha

2001-11-28

BHASKAR BHATTACHARYA

body2001
JUDGMENT Bhaskar Bhattacharya, J. 1. This revisional application under Article 227 of the Constitution of India is at the instance of substituted plaintiffs and is directed against order dated August 14, 2001 passed by the learned Additional District Judge, 11th Court, Alipore in Civil Revision No.386 of 1999 thereby affirming Order No.102 dated August 10, 1999 passed by the learned Civil Judge, Junior Division, 2nd Court, Sealdah in Title Suit No.194 of 1989 allowing an application for amendment of plaint. 2. In the year 1989, the original plaintiff, since deceased, filed the aforesaid suit for declaration that a sale deed standing in the name of defendant Nos. 1 and 2 and purportedly executed by him was out and out fraudulent and invalid and was not binding upon the plaintiff and that by virtue of the said deed no title passed in favour of the defendant Nos. 1 and 2. The plaintiff also prayed for permanent injunction restraining the defendant Nos. 1 and 2 and their men and agent from transferring or encumbering the suit property. 3. The case made out by the original plaintiff in the suit was that he was given to understand by defendant Nos. 1 and 2 that a power of attorney was prepared authorizing the defendant Nos. 1 and 2 to take step in the Calcutta Municipal Corporation for mutation on behalf of the plaintiff. But ultimately it appeared that the same was a purported sale deed in favour of defendant Nos.1 and 2 although no money was paid to the plaintiff. It was also stated in the plaint that the defendant Nos. 1 and 2 were in possession of one room as a licensee and the original plaintiff craved leave to file a separate suit for recovery of possession from defendant Nos. 1 and 2. 4. At the time of hearing of the suit the defendant No.2 while giving evidence as D.W. 1 exhibited some documents including one dated August 26, 1986 showing that the original plaintiff executed a 'Baina Patra' for sale of the suit property in favour of the defendant Nos. 1 and 2 after accepting Rs. 31,501/-. 5. At this stage, the substituted plaintiffs came up with an application for amendment of plaint. 1 and 2 after accepting Rs. 31,501/-. 5. At this stage, the substituted plaintiffs came up with an application for amendment of plaint. By way of amendment; the substituted plaintiffs prayed for relief under section 34 of the Bengal Money Lenders Act after declaring that the deed dated August 28, 1986 was a loan transaction in substance. The substituted plaintiffs also prayed for recovery of possession from the part of the property which according to the plaintiff was in possession of defendant Nos. 1 and 2 as licensee. 6. The learned trial Judge by Order No. 102 dated August 10, 1999 rejected such application holding that by virtue of such amendment the plaintiffs wanted to deprive the defendants of a valuable right which had accrued in their favour by lapse of time. 7. Being dissatisfied, the substituted plaintiffs preferred a revisional application under section 115A of the Code of Civil Procedure before the learned revisional court below and by the order impugned herein the said court has affirmed the order passed by the learned trial Judge. 8. Being dissatisfied, the substituted plaintiffs have come up with the instant application under Article 227 of the Constitution of India. 9. Mr. Banerjee, the learned counsel appearing on behalf of the petitioners by relying upon the decision of the Supreme Court in the case of Ragu Thilak D. Jon Vs. S. Rayappa and Ors., reported in 2001(2) SCC page 472, contended that merely because the relief claimed by way of amendment is barred by limitation, that fact cannot be a ground for refusing the prayer for amendment. Mr. Banerjee contends that the question of limitation can be adjudicated at the time of trial. Mr. Banerjee further contends that apart from the relief under Bengal Money Lenders Act the plaintiffs also prayed for recovery of possession from the licensee. The original plaintiff in the plaint having specifically described the defendant Nos. 1 and 2 as a licensee in respect of a portion of the suit property and having craved leave to file a separate suit for recovery of possession, Mr. Banerjee proceeds, the learned courts below should have allowed the said prayer to avoid unnecessary multiplicity of proceedings. 10. Ms. Nandy, the learned counsel appearing on behalf of the defendant Nos.1 and 2 has on the other hand opposed the aforesaid contentions of Mr. Banerjee proceeds, the learned courts below should have allowed the said prayer to avoid unnecessary multiplicity of proceedings. 10. Ms. Nandy, the learned counsel appearing on behalf of the defendant Nos.1 and 2 has on the other hand opposed the aforesaid contentions of Mr. Banerjee and has contended that in the decision cited by Mr. Banerjee there was dispute as to whether the new claim was barred by limitation. But in the instant case, Ms. Nandy contends, there is no such dispute. Therefore, the said decision, according to Ms. Nandy, cannot have any application to the fact of the present case. In this connection Ms. Nandy relies upon two decisions of the Apex Court, one in the case of P.A. Ahammad Ibrahim vs. Food Corporation of India, reported in AIR 1999 SC page 3033 and other in the case of Radhika Debi vs. Bajrangi Shing and Ors., reported in AIR 1996 SC page 2358. 11. After hearing the learned counsel for the parties and after going through the materials on record I am in full agreement with Ms. Nandy that the decision of the Supreme Court in the case of Ragu Thilak D. John (supra) cannot have any application to the facts of the present case. In the instant case by way of amendment filed in the year 1999, the substituted plaintiffs want to get relief under Bengal Money Lenders Act by disputing the 'Baina Patra' of the year 1986 as a loan in substance. On the face of such allegation, the relief under Bengal Money Lenders Act is clearly barred by limitation. Thus, there is no dispute as regards the question of limitation even if we accept the amended pleadings of the substituted plaintiffs. Moreover, by taking specific plea in the original plaint that the disputed sale deed of 1987 was a fraudulent one having been obtained on the plea of execution of a power of attorney, the successors of the original plaintiff now cannot turn round and say that the agreement for the disputed transaction was a loan in substance after such agreement for sale has been exhibited during evidence. The original plaintiff although deposed in the suit during his lifetime, never disclosed that he ever took loan from the defendants by execution of such an agreement for sale. Therefore, the amended plea is not only barred by limitation but also a mala fide one. 12. The original plaintiff although deposed in the suit during his lifetime, never disclosed that he ever took loan from the defendants by execution of such an agreement for sale. Therefore, the amended plea is not only barred by limitation but also a mala fide one. 12. I however find substance in the contention of Mr. Banerjee that the other part of the amendment by which the substituted plaintiffs have prayed for recovery of possession could be granted by the learned courts below. There is no dispute that in the original plaint the plaintiffs described the defendants as licensee in respect of a part of the property but craved leave to file subsequent suit for eviction. The present application for amendment having been filed before expiry of 12 years from the date of presentation of suit, the learned courts below for avoiding multiplicity of proceedings could allow such amendment. After all, the said prayer for recovery of possession is merely a consequential one; if the plaintiff ultimately succeeds in the suit and if it is declared that the sale deed was really a fraudulent one, the plaintiffs, as a matter of right, will be entitled to get a decree of recovery of possession from the defendants. Similarly, if the case of the plaintiffs fails, they cannot get any decree for recovery of possession. Therefore, in such a situation, the other part of the amendment viz. inclusion of prayer for recovery of possession from B Schedule property ought to have been allowed. 13. I thus modify the orders impugned by allowing the application for amendment of plaint in part. The plaintiff is entitled to amend the pleadings in terms of clauses (i) and (ii) of the Schedule of amendment and also to incorporate the prayer of recovery of possession of B Schedule property on payment of full amount of a court fees as will be assessed by the court. The other portion of the amendment should not be allowed as those are mala fide and at the same time barred by limitation. Even, the statement sought to be added as the second part of para 13A should not be allowed when those pleas were not taken by the original plaintiff who has already deposed. 14. I thus dispose of the revisional application by modifying the order impugned and allowing the application for amendment of the plaint in part as indicated above. Even, the statement sought to be added as the second part of para 13A should not be allowed when those pleas were not taken by the original plaintiff who has already deposed. 14. I thus dispose of the revisional application by modifying the order impugned and allowing the application for amendment of the plaint in part as indicated above. The other part of the order refusing amendment is affirmed. 15. In the facts and circumstances there will be however no order as to costs. Revisional application allowed in part and refused in part.