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2008 DIGILAW 473 (CAL)

Kanailal Maity v. Kolkata Construction

2008-05-05

BISWANATH SOMADDER

body2008
JUDGMENT 1. Heard the learned Advocate appearing on behalf of the petitioner, being the plaintiff in the suit pending in the learned Court below. 2. None appears on behalf of the opposite parties at the time of call, even though notice has been caused to be served. 3. The instant application under Article 227 of the Constitution of India is primarily directed against an order passed by the learned 1st Civil Judge (Junior Division) at Alipore, 24 - rarganas (South). 4. The order impugned has been passed by the learned Court below on 12th July, 2007, in Title Suit No. 124 of 2005. By the said order, the learned Court below has rejected the amendment application of the plaintiff under Order 6 Rule 17 of the Code of Civil. Procedure. The reasons recorded in the order dated 12th July, 2007, are reproduced herein-below: "The record is taken up for passing order. Perused the amendment petition, the written objection, and other materials on record considered. It appears that the suit was initially dismissed under Order 7 Rule 11 CPC. Learned Appellate Court set aside the order of this Court and directed for trial of the suit. A plain reading of the amendment petition goes to show that the plaintiff has made out a new stay by way of amendment in order to fill up the lacuna of the plaint. While the original suit relates to a suit for permanent injunction, the present amendment attempts to alter the suit as a suit for declaration and claims decree over the 'B' Schedule property. The proposed amendment if allowed to stand it will absolutely change the nature and character of the suit. The plaintiff appears to have claimed his right by virtue of an agreement dt. 30.10.03. The suit is filed on 6.4.05. The facts and terms and conditions of the impugned agreement was very much within the knowledge of the plaintiff at the time of filing the suit. Despite that the plaintiff remained silent about the said agreement. It is not the case that despite exercising due diligence the plaintiff could not put in the said facts in the pleadings. The amendment appears to be not necessary to determine the real question in controversy. Ld. Advocate for the plaintiff referred to the decision of 1996(III) CHN 23 wherein it is decided that an amendment can be made even at the stage of appeal. The amendment appears to be not necessary to determine the real question in controversy. Ld. Advocate for the plaintiff referred to the decision of 1996(III) CHN 23 wherein it is decided that an amendment can be made even at the stage of appeal. The decision does not apply because it bears an CPC 1908 and not after the amendment secondly the facts are completely different. Ld. Counsel also referred to another decision wherein Hon'ble Apex Court held in 2004(2) WBLR (SC) 530 that there is no limitation for filing amendment petition. The said decision as referred by the ld. Counsel does not apply inasmuch as here the petition is not hit by limitation but it does not fulfil the essential prerequisites for granting the amendment petition. Ld. Counsel also referred to another decision of the Hon'ble Supreme Court being reported in 2006(2) WBLR (SC) 18. It is relied there that taking note of subsequent events, if permissible. Merits of amendment is not be adjudged during allowing the amendment. The decision has got no application were became the facts of amendment is leased on an agreement of 2 to 3 which the plaintiff was full knowledge during the filing of the suit in 2005. In view of the aforesaid discussions and observations made therein I am of the view that the amendment petition is devoid of any merit and does not deserve to be allowed. Hence, it is, Ordered that the amendment petition of the plaintiff under Order 6 Rule 17 CPC dt. 4.4.07 is rejected on contest without cost. To 17.8.07 for issue & hearing injunction." 5. It appears' from the records that the cause of action giving rise to the institution of the suit, as it unfolds from the plaint, is in respect of the defendants' endeavour to change the nature and character of the ground floor of the suit property by attempting to convert it into a garage parking place for automobiles, despite the specific terms and conditions under clause 5 of an agreement dated 30th October, 2003, which has been referred to by the plaintiff. Prayer (a) of the original plaint reads as follows:- "(a). A decree of permanent injunction restraining the defendants from changing the nature and character of the ground floor of the proposed building at the suit property." 6. Prayer (a) of the original plaint reads as follows:- "(a). A decree of permanent injunction restraining the defendants from changing the nature and character of the ground floor of the proposed building at the suit property." 6. As observed hereinbefore, the cause of action that arose for instituting the suit was in respect of the specific terms and conditions under clause 5 of an agreement dated 30th October, 2003. Clause 5 of the agreement reads as follows: "The developer shall provide and shall allot to the purchaser/tenant a flat on the GROUND FLOOR, NORTH-ESASTERN SIDE, measuring total 320 (Three Hundred Twenty) square feet carpet area consisting of one bed room measuring 10 x 9 = 90 square feet, one bed room measuring 10 x 10 = 100 square feet one living-cum-dining measuring 10 X 6 = 60 square feet one kitchen measuring 8 x 5 = 40 square feet one toilet measuring 6 x 5 = 30 square feet. That if the PURCHASER/TENANT desires to purchase any extra area in the said Building apart from the aforesaid 320 (Three Hundred Twenty) square feet Carpet area then in that case the Developer agrees to sale the said extra area for which the Developer will take Rs. 70000 (Rupees Seven Hundred) only per square feet from the Purchaser/ Tenant. 7. The plaint, as sought to be amended, if allowed, would have had the following prayers: "(a) A decree declaring that the plaintiff is entitled to get a decree of declaration that he is entitled to get 'B' schedule property as per agreement dated 30.12.2003 by and between the parties; (aI) Mandatory injunction directing the defendants to restore the possession of the 'B' schedule property within the time limit given by the learned Court and in default execution of the decree of Mandatory injunction: (aII) A decree for damages @ Rs. 200/- per diem till restoration of possession of the 'B' schedule property subject to payment of additional Court-fees; (b) temporary injunction; (c) costs of the suit; (d) relief or reliefs to which the plaintiff is found entitled both at law and in equity." 8. 200/- per diem till restoration of possession of the 'B' schedule property subject to payment of additional Court-fees; (b) temporary injunction; (c) costs of the suit; (d) relief or reliefs to which the plaintiff is found entitled both at law and in equity." 8. I am of the opinion that the learned Court below has rightly observed that the amendment as sought for would absolutely change the nature and character of the suit, which according to me, is impermissible in law, howsoever liberal the Court may be, in order to grant amendment of plaint, since the declaration sought for in the amended prayers of the plaint was beyond the scope of the reliefs as prayed for in the original plaint. 9. The reasons, as provided by the learned Judge in the order impugned, cannot be questioned, since there is no apparent infirmity. 10. The learned Advocate for the petitioner has referred to and relied upon two judgements of the Hon'ble Supreme Court. They are:- (i) Ragu Thilak D John vs. S. Rayappan & Ors., reported in 2001(2) SCC 472 and (ii) Sampath Kumar vs. Ayyakannu & Anr., reported in AIR 2002 SC 3369 . 11. In the facts of Ragu Thilak D John's case, the appellant had filed a suit against the respondents praying for a decree of permanent injunction restraining them, their agents and subordinates from demolishing the compound wall in the suit scheduled property. During the pendency of the suit, respondents-defendants were alleged to have entered the appellant's house unauthorisedly and demolished the compound wall on the north, east and west side. They also damaged the gate in the entrance. In view of those subsequent developments, the appellant filed an application under Order 6 Rule 17 of the Code of Civil Procedure for the amendment of the plaint for adding paras 8(a) to 8(f) in the plaint. The Trial Court rejected his prayer. The revisional application filed against that order was dismissed by the High Court. 12. It was in the aforementioned factual background, the Hon'ble Supreme Court observed that the amendment sought for could not be declined, while keeping the point of limitation as raised by the respondents alive, to be decided as a subject-matter of the issue after allowing the amendment prayed for. 13. 12. It was in the aforementioned factual background, the Hon'ble Supreme Court observed that the amendment sought for could not be declined, while keeping the point of limitation as raised by the respondents alive, to be decided as a subject-matter of the issue after allowing the amendment prayed for. 13. In Sampath Kumar's case (supra), the plaintiff/appellant filed a suit for issuance of permanent prohibitory injunction alleging the plaintiff/appellant's possession over the suit property which was an agricultural land. The defendant in his written statement denied the plaint's averment and pleading that on the date of institution of the suit he was in possession of the suit property and therefore, the suit for injunction was liable to be dismissed. The suit was instituted in the year 1988. In the year 1999, before commencement of the trial, the plaintiff moved an application under Order 6 Rule 17 of the Code of Civil Procedure, seeking an amendment of the plaint, wherein it was alleged that in January 1989, during the pendency of the suit, defendant had forcibly dispossessed the plaintiff. On the basis of such averment, the plaintiff sought for relief of declaration of title to the suit property and consequential relief of delivery of possession. The suit was proposed to be valued accordingly along with the payment of Court-fee. The prayer for amendment was opposed by the defendants/respondents. The Trial Court rejected the application for amendment. The order of trial Court was maintained by the High Court in revision. 14. The question that arose before the Hon'ble Supreme Court in that factual background, was whether it was permissible to convert through amendment a suit merely for permanent prohibitory injunction into suit for declaration of title and recovery of possession. 15. In the facts of that case, the Hon'ble Supreme Court in paragraph 7 (seven) of the judgement observed that the basic structure of that suit was not altered by the proposed amendment. What was sought to be changed was the nature of reliefs sought for by the plaintiff. In the factual context of that matter, the Hon'ble Supreme Court was pleased to allow the plaintiff to incorporate the plea sought to be raised by way of amendment in the original plaint, foregoing the plea to the extent given up by him before the Trial Court. In the factual context of that matter, the Hon'ble Supreme Court was pleased to allow the plaintiff to incorporate the plea sought to be raised by way of amendment in the original plaint, foregoing the plea to the extent given up by him before the Trial Court. The Hon'ble Supreme Court in the said judgement, however, was pleased to direct the plaintiff to pay cost of Rs. 2,000/- for delay in making the application for amendment, as a condition precedent to incorporate the amendment in the plaint. 16. As observed hereinabove, the facts of the instant case are entirely different. A plain reading of the order impugned makes it clear that the proposed amendment, if allowed to stand, would absolutely change the nature and character of the suit. 17. There is no reason for me to disagree with the finding of the learned Court below and there is no error of law, which would warrant interference of this Court in exercise of its power under Article 227 of Constitution of India. 18. The instant application, therefore, stands dismissed with costs assessed at 50 G.Ms. 19. Xerox certified copy of this order, if applied for, be given to the parties. Biswanath Somadder, J.: Revisional application dismissed with costs.