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2002 DIGILAW 228 (CAL)

Rajani Kania Burman v. Union of India

2002-04-04

ASIT KUMAR BISI

body2002
JUDGMENT The learned Advocates for the plaintiff and the learned Advocates for the defendant Nos. 1 and 3 are present. None appears on behalf of the defendant No.2. 2. The petition for amendment of the plaint filed by the plaintiff is taken up for hearing. 3. Heard learned Counsel for the parties. 4. By the petition for amendment of the plaint the plaintiff proposes to amend some portions of the plaint in view of subsequent addition of defendant No.3 as party to the suit. From the materials-an-record it appears that the Port Health Organisation, who has subsequently been impleaded as defendant No.3 in the present suit, filed a petition under Order 1 Rule 10 of the Code of Civil Procedure praying for impleading it as defendant No. 3 to the suit and by an order dated 12.10.2001 passed by G. C. De, J. the said petition was allowed and Port Health Organisation had been added as defendant No.3 in the suit in terms of the above noted order dated 12.10.2001 and the cause title of the plaint was amended accordingly. 5. It is contended by Mr. P. K. Das, learned Senior Advocate for the plaintiff that after filing of the suit various subsequent events which are very relevant in connection with the matters in issue have taken place and the amendment of the plaint as proposed is essentially required for bringing into record such subsequent events that have taken place in the course of the instant proceeding. He has particularly drawn my attention to the subsequent addition of defendant No.3 as party to the suit. It appears that the defendant No.3 claims tenancy in respect of the suit premises, which has been disputed by the plaintiff. On going through the petition for proposed amendment of the plaint I find that subsequent events mainly due to addition of defendant No.3 as party to the suit necessitate amendment of the plaint as proposed. 6. Mr. Das has cited several rulings in support of his contention that the Court can take notice of subsequent events and allow prayer for amendment of the plaint, in view of altered circumstances emanating from such subsequent events. 7. In (1) M/s. M. Laxmi & Co. v. Or. Anant R. Deshpande & Anr. 6. Mr. Das has cited several rulings in support of his contention that the Court can take notice of subsequent events and allow prayer for amendment of the plaint, in view of altered circumstances emanating from such subsequent events. 7. In (1) M/s. M. Laxmi & Co. v. Or. Anant R. Deshpande & Anr. reported in AIR 1973 SC 171 at page 177 (para 27) it has been held by the Supreme Court that if the Court finds that the judgment of the Court cannot be carried into effect because of change of circumstances the Court takes notice of the same. Similar is the view expressed by the Supreme Court in the case of (2) Pasupuleti Venkateswarlu vs. The Motor & General Traders reported in AIR 1975 SC 1409 . 8. It has been clearly laid down in (3) Narendra Paul Chowdhury & Anr. v. G. I. Malhotra & Ors. reported in AIR 1982 Calcutta 358 at page 360 that if the Courts are empowered to take note of the subsequent facts there is no reason why the plaintiff should be prohibited from taking advantage of such cognizance by amending his plaint. It has further been held in the case of Narendra Paul Chowdhury (supra), that if the plaintiff is to succeed on his original cause of action and nothing else, as has been urged on behalf of the defendants, then in no case the Court can take note of subsequent facts and the amendments asked for, if allowed, are expected in shorten the proceedings and to prevent multiplicity of proceedings. 9. Relying on the aforesaid decisions Mr. Das learned Senior Advocate for the plaintiff has argued that the proposed amendment of the plaint is essentially required for adjudicating upon the matters in controversy between the parties. 10. The petition for amendment of the plaint has been contested by the defendant NO.3 alone. Defendant No.1 has not contested the said application for amendment of the plaint. The learned Advocate for the defendant No. 1 has raised no objection to the prayer for amendment of the plaint made by the plaintiff. Mr. 10. The petition for amendment of the plaint has been contested by the defendant NO.3 alone. Defendant No.1 has not contested the said application for amendment of the plaint. The learned Advocate for the defendant No. 1 has raised no objection to the prayer for amendment of the plaint made by the plaintiff. Mr. P. K. Ghosh, learned Senior Advocate appearing for the defendant No.3 has pointed out that the plaintiff did not take any steps for making proposed amendment of the plaint at the time when the defendant No. 3 was added as party and the writ of Summons was served upon defendant No. 3 on two occasions when the cause title of the plaint was amended due to addition of defendant No.3 as party to the suit and at that time no such amendment as proposed was sought to be incorporated by the plaintiff in the plaint. Mr. Ghosh has contended that there is suppression of facts in the petition for amendment of the plaint. He has further contended that there is no proper reverification of the proposed amended plaint. 11. Mr. Das on the other hand has contended that there is no question of suppression of any material fact in the instant petition for amendment of the plaint. He has drawn my attention to the relevant order passed by this Court and pointed out that the only order which is relevant for the purpose is the order relating to addition of defendant No.3 as party to the suit and copy of the said order has already been annexed with the petition for the amendment of the plaint. 12. Mr. Ghosh has submitted that the reverification has not been properly done by the plaintiff at the time of filing of the proposed amended plaint. He has further argued that there was no cause of action against the defendant No.3 at the time when the defendant No.3 was added as party to the suit and the prior amendment of the cause title of the plaint, with regard to the addition of defendant No.3 as party to the suit does not indicate any cause of action against the defendant No.3. He has cited the case of (4) Sailesh Nath Bisi v. B. Chaudhuri & Ors. He has cited the case of (4) Sailesh Nath Bisi v. B. Chaudhuri & Ors. reported in 50 CWN 540 in support of his contention that the Court has no option but to reject the claim and no jurisdiction to allow an amendment where the plaint, on the face of it, discloses no cause of action. Mr. Das, on the other hand, has refuted the above contention of Mr. Ghosh and argued that the amendment can be allowed at any stage of the suit and since the defendant No.3 was subsequently added there was no occasion for the plaintiff to claim any relief against the said defendant prior to addition of, defendant No.3 as party to the suit. So far as the reverification of the proposed amended plaint is concerned it has rightly been argued by Mr. Das that the question of reverification of the proposed amended plaint can only arise after the proposed amendment is allowed by the Court. Mr. Ghosh has pointed out that there was delay in filing of the petition for proposed amendment of the plaint. He has argued that the plaintiff was aware of the tenancy of defendant No.3 in respect of the suit premises long before and in spite of that he has not taken any step to make the proposed amendment of the plaint. 13. Mr. Das on the other hand, has contended that the amendment sought is required and the relief is claimed against the defendant No.3 only after defendant No.3 has been added as party to the suit and as such, there can hardly be any question of delay in the instant case. 14. Mr. Ghosh has pointed out some of the rules of the Original Side of the High Court at Calcutta and pointed out that those rules are not strictly complied with by the plaintiff. He has also argued that the plaint does not disclose that any part of cause of action is situated partly within the jurisdiction of this Court and that no leave under Clause 12 of the Letters Patent for the proposed amended plaint is sought by the plaintiff. Mr. Das has seriously challenged the said contention of Mr. Ghosh and pointed out that the contents of the plaint clearly indicate that the suit property is situated within the jurisdiction of this Court. Mr. Das has seriously challenged the said contention of Mr. Ghosh and pointed out that the contents of the plaint clearly indicate that the suit property is situated within the jurisdiction of this Court. He has further pointed out that fresh leave under Clause 12 of the Letters Patent has already been sought by the plaintiff in the prayer portion of the petition for amendment of the plaint. 15. Mr. Das has cited the case of (5) Provabati Kunwar v. Kaiser Kunwar & Ors. reported in AIR 1959 Calcutta 642 at page 646 wherein it has been held that a suit cannot and ought not to fail because of imperfect verification and the Court should give leave to rectify it at any time. 16. It is no doubt settled law that the predominant consideration for dealing with the application for amendment is whether, it is necessary for determining the real points in controversy between the parties and whether the amendment can be allowed without injustice to the other side. It is also settled principle of law that the amendment of the pleadings ought to be viewed with the object of minimising the litigation. These principles of law have been enunciated in a recent decision of this Court in the case of (6) Ajit Kumar Thakur v. United India Insurance Company Limited reported in 2002 (1) Cal LT 194 (HC) which is based on a number of decisions of the Supreme Court. 17. Having regard to the facts and circumstances emerging from the materials-on-record and the principles of law as discussed above I am of the view that the proposed amendment of the plaint ought to be allowed for effective adjudication of the points in controversy between the parties. The objections raised by Mr. Ghosh, the learned Senior Advocate appearing for the defendant No.3 to the proposed amendment of the plaint have got no substance. 18. For the foregoing reasons, I grant fresh leave under Clause 12 of the Letters Patent for the proposed amendment of the plaint. There will be also an order in terms of prayers (b), (c), (d) and (e) of the petition being G.A. No. 694 of 2002. 19. The petition for amendment of the plaint is allowed accordingly. 20. Service of amended plaint upon the parties be effected within two weeks after the amendments are carried out. 21. There will be also an order in terms of prayers (b), (c), (d) and (e) of the petition being G.A. No. 694 of 2002. 19. The petition for amendment of the plaint is allowed accordingly. 20. Service of amended plaint upon the parties be effected within two weeks after the amendments are carried out. 21. Defendant No. 3 is directed to file written statement within two weeks after service of the copy of the amended plaint. Defendant No. 1 is at liberty to file additional written statement, if any, in the meantime. 22. Let the suit appears in the list on 30th April, 2002. 23. Cost of the application will be cost in the cause. All parties including the department concerned are to act on a xerox signed copy of this dictated order on the usual undertakings.