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2007 DIGILAW 97 (CAL)

SANTANA MUKHERJEE (NEE MOHANTA) v. SUNIL KR. SAHA

2007-02-15

ARUN KUMAR BHATTACHARYA

body2007
( 1 ) THE twin revisional applications under Article 227 of the Constitution of India being C. O. No. 4431 of 2006 and C. O. No. 4437 of 2006 filed by the petitioner are directed against order No. 14 dated 28. 08. 2006 and order No. 15 dated 28. 08. 2006 passed by the learned Additional District judge, 7th Court, Barasat in T. A. No. 67/05 and T. A. No. 68/05 respectively dismissing the application of the petitioner for amendment of her pleadings. ( 2 ) THE circumstances leading to the above applications are that the present petitioner filed a suit being T. S. No. 349/97 for declaration of her tenancy right and protection of her possession in the disputed property being first floor of Premises No. 11, Bangur Avenue, Block-D, P. S. Lake town inter alia contending that she was inducted in the disputed premises as a tenant in January 1989 by the previous landlady at a rental of rs. 200/- per month payable according to English calendar month, and after death of the said landlady Kshanika Chatterjee, none came to demand rents from her and so she continued her possession in the disputed premises. On 14. 08. 97 one Santu Bose along with some unknown persons suddenly came there during her absence and caused a lot of damages in the disputed premises, for which she felt insecured. Subsequently, she came to learn that the respondents were the men behind such illegal acts for which, she instituted the suit. The O. Ps. , on the other hand, instituted t. S. No. 458/97 against the petitioner for eviction contending that the petitioner was a mere licensee in the disputed property without any licence fee. They acquired right, title and possession over the disputed property by purchase and wanted to develop the same by reconstruction. The petitioner vacated the disputed property in their favour in lieu of a sum of rs. 3,20,000/- paid by them to her, but subsequently the petitioner re-entered into the disputed property illegally and occupied the same without any legal right whatsoever arid she is a rank trespasser. The plaint case of one is virtually the defence case in another. Both the cases were heard analogously and disposed of by the learned Civil Judge (Jr. Div.), 3rd Court, Sealdah by a common judgment and order dated 18. 04. The plaint case of one is virtually the defence case in another. Both the cases were heard analogously and disposed of by the learned Civil Judge (Jr. Div.), 3rd Court, Sealdah by a common judgment and order dated 18. 04. 2005 dismissing the suit of the petitioner and decreeing the suit of the O. Ps. with a direction to the petitioner to make over vacant possession of the property to the O. Ps. within three months. Being aggrieved by the said judgment, the petitioner preferred the said appeals. In the first Court of appeal the petitioner/appellant filed an application for amendment for insertion of the fact that she occupied an identical portion of the second floor of the disputed building as a licensee under the landlady Kshanika chatterjee, for which she paid a sum of Rs. 25,000/- and she had vacated occupation of the said second floor of the building in lieu of a sum of rs. 3,20,000/- to the respondents who obtained decree in T. S. No. 458/97 by introducing a false story. The learned first Court of appeal refused the prayer for amendment. ( 3 ) BEING dissatisfied with the said order of refusal, the petitioner has landed in this Court. ( 4 ) SINCE parties are same and common question of law and fact are involved, both the matters were heard together for the sake of convenience. ( 5 ) MR. Banerjee, learned Advocate for the petitioner, assailed the impugned order mainly on two-fold grounds viz. (1) when the proposed amendment was necessitated on account of mistake due to lack of proper instructions of his client, the learned Court below should have taken a liberal view in allowing the amendment for effective adjudication of the matter in controversy, and (2) the learned Court below failed to exercise , jurisdiction lawfully vested in it. Mr. Banerjee, learned Senior Advocate for the O. Ps. Mr. Banerjee, learned Senior Advocate for the O. Ps. , on the other hand, on referring the cases of Gulshan Bibi v. Hasmat Ali, reported in 2005 (2) CHN 667 , Aktar Hossain v. Susama Rani sahoo, reported in 2001 (3) CHN 228 and Heeralal v. Kalyan Mal, reported in AIR 1998 SC 618 contended that when the proposed amendment will not only introduce a completely new case but also result in undoing the specific admission of the petitioner/defendant that she is in occupation of one flat only in the first floor, and the amendment sought for will involve fresh adjudication or retrial, the learned Court of appeal below was quite justified in refusing the prayer for amendment. ( 6 ) ALL amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original Us was raised or defence taken. It is well settled that a party seeking amendment of the pleadings is required to give cogent reasons than mere inadvertence for not taking the said plea earlier, as was held in the case of Gurdial Singh v. Raj Kumar Aneja, reported in AIR 2002 SC 1003 . Here, it is the specific case of the plaintiffs and defendant that the defendant is in occupation of a flat in the first floor. The consequence of the proposed amendment will not only displace the plaintiffs' case but also will involve withdrawal of defendant's admission as also fresh factual question leading to re-opening of the suit and retrial on a new footing which is not at all permissible. Reference, may be made to the cases of Heeralal (supra), Gulshan Bibi (supra) and Aktar Hossain (supra ). Amendment altering the nature of a suit cannot be allowed even when the party was under a honest mistake as to his legal rights. To entertain a case of which the pleadings contained no suggestion is improper and irregular, as was held in the case of Murlidhar v. IF Co. , reported in AIR 1943 PC 34. Where amendment sought for is entirely different one and not necessary for deciding the lis it cannot be allowed. To entertain a case of which the pleadings contained no suggestion is improper and irregular, as was held in the case of Murlidhar v. IF Co. , reported in AIR 1943 PC 34. Where amendment sought for is entirely different one and not necessary for deciding the lis it cannot be allowed. In other words, making out a case for which there is not the slightest basis in the pleadings as it originally stood thus resulting in fundamental alteration of the pleadings of which the lis will assume a complexion wholly beyond the compass of the original cause of action will fall beyond the scope of amendment. In this connection, the cases of Phoolrani v. Naubat, reported in AIR 1973 SC 2110 , Gurdial Singh (supra), B. K. Naryana Pillai v. Parmeswaran Pillai, reported in AIR 2000 SC 614 at 616 and Chiranji v. Jagat, reported in AIR 1972 Cal 88 may be referred to. ( 7 ) IN the light of the above discussion when the proposed amendment will change the nature and character of the suit, about which there was no whisper in the pleadings as it originally stood and will raise fresh issues triable by evidence, the learned Court of appeal below rightly rejected the prayer for amendment, and as such the present applications being devoid of any merit, be dismissed. There will, however, be no order as to costs.