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2008 DIGILAW 694 (GAU)

Anil Ch. Nath v. Md. Aliul Islam

2008-09-15

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By the order, dated 8.4.2008, passed, in Title Suit No. 83/2004, by the learned Civil Judge, Bongaigaon, the Plaintiff's prayer for amendment of the plaint was allowed. The present Petitioner, who was Defendant No. 1 in the suit, has impugned the same, in this proceeding, by making the present application under Article 227 of the Constitution of India. 2. The material facts, which have given rise to the present revision, may, in brief, be set out as under: The two plots of land, described in Schedule A and B to the plaint, belonged to, and were owned by, Defendant No. 1. Pursuant to the negotiations, which had taken place between the Plaintiff, on the one hand, and the Defendant No. 1, on the other, an agreement for sale of the said plots of land was executed on 8.5.2000. In terms of this agreement, consideration for the plot of land, described in Schedule A to the plaint, was to the tune of Rs. 1,20,000; whereas consideration for the plot of land, described in Schedule B, was Rs. 1,79,000. Thus, the total amount of consideration for both the plots of land aforementioned was a sum of Rs. 2,99,000. The Plaintiff paid a sum of Rs. 85,000 as advance and the Defendant No. 1 acknowledged receipt of this amount. On different dates thereafter, the Plaintiff made payment of diverse sums of money to the Defendant No. 1 and, in course of time, a sum of Rs. 7,660 only remained to be paid. The Defendant No. 1, despite having, received the entire consideration amount except the said sum of Rs. 7,660, denied to have received any amount beyond the amount, which had been acknowledged, in writing, by the Defendant No. 1. Though the Plaintiff made all efforts to get the sale deed executed, the Defendant No. 1 refused to execute the sale deed on the ground that he had not received the total consideration amount except the said sum of Rs. 85,000. Thus, instead of executing the sale deed in favour of the Plaintiff by accepting the offered balance amount of Rs. 7,660, Defendant No. 1 sold some portions of the land of Schedule B to the Defendant Nos. 2, 3 and 4, the land, so sold, in favour of the Defendant Nos. 2, 3 and 4, being described in Schedules C, D and E to the suit respectively. 7,660, Defendant No. 1 sold some portions of the land of Schedule B to the Defendant Nos. 2, 3 and 4, the land, so sold, in favour of the Defendant Nos. 2, 3 and 4, being described in Schedules C, D and E to the suit respectively. With the case so set up, the Plaintiff sought for the following reliefs: (a) For a decree of declaration that the agreement for sale dated 8.5.2000 in respect of the suit land is bonding upon the Defendants. (b) For a decree for cancellation of the registered Sale Deed No. 1693 of 2004, registered Sale Deed No. 1694 of 2004 and registered Sale Deed No. 1695 of 2004. (c) For a decree for specific performance in respect of the agreement for sale directing the Defendant No. 1 to execute the Sale Deed/Sale Deeds in respect of the suit land in favour of the Plaintiff. (d) For a decree for eviction of the Defendant Nos. 2 to 4 from the suit land by dismantling the structures therein with delivery of khas possession thereof to the Plaintiff. (e) For a decree for permanent injunction restraining the Defendant No. 1 from transferring the suit land or its part to any other person than the Plaintiff. (f) For a temporary injunction restraining the Defendant No. 1 from transferring the suit land or its part to any other person than the Plaintiff until disposal of the suit. (g) For costs of the suit. (h) For any other relief/reliefs that the Plaintiff is entitled both in law and equity. 3. The Defendant No. 1 contested the suit by filing his written statement, wherein, while not denying execution of the agreement for sale, the Defendant No. 1 pleaded that it was due to delay in making payment of the consideration value by the Plaintiff that the agreement for sale had failed and some portions of the land had been sold by the Defendant No. 1 in favour of the remaining Defendants. Defendant No. 1, thus, denied that agreement for sale had not been adhered to, and acted upon, by the Defendant No. 1; rather, the case of the Defendant No. 1 was that the agreement for sale had failed due to failure of the Plaintiff to make payment of the balance amount of consideration within the agreed period. 4. Defendant No. 1, thus, denied that agreement for sale had not been adhered to, and acted upon, by the Defendant No. 1; rather, the case of the Defendant No. 1 was that the agreement for sale had failed due to failure of the Plaintiff to make payment of the balance amount of consideration within the agreed period. 4. After issues already stood framed in the suit, the evidence of the Plaintiff's side was filed by way of affidavits. Thereafter, the Plaintiff sought for amendment of the plaint. The proposed amendment read as under: Para 2(A) That the Defendant No. 1 after execution of the agreement for sale (Baina-Patra) with the Plaintiff on 8.5.2000 in respect of the suit properties, delivered possession of the Schedules A and B properties to the Plaintiff in presence of some family members, friends and relatives. But subsequently, the Defendant refused to execute the sale deed in favour of the Plaintiff demanding exceptionally high amount besides the agreed sale price of the suit properties. Thereafter, the Defendant, without knowledge and consent of the Plaintiff, transferred the Schedules C, D and E properties out of Schedule B properties in favour of the Defendant Nos. 2, 3 and 4 vide (1) Regd. Sale Deed No. 1693 of 2004, dated 5.8.2004, (2) Regd. Sale Deed No. 1694 of 2004, dated 5.8.2004 and (3) Regd. Sale Deed No. 1695 of 2004, dated 5.8.2004, respectively. The said Sale Deeds were executed and registered at Sub-Registry Office, Abyayapuri. However, the Plaintiff has been still possessing and enjoying the Schedule A properties as well as the remaining portion of the Schedule B properties. 5. The learned court below, having heard both sides, passed the order, dated 8.4.2008, aforementioned, allowing amendment and it is this order, which stands, as already indicated above, impugned in this proceeding. 6. I have heard Mr. R. Ali, learned Counsel for the Petitioner, and Mr. D. Mazumdar, learned Counsel, for the Respondents-opposite party. 7. Before entering into the merit of the present application, what needs to be pointed out is that the provisions of Order VI, Rule 17 of the Code of Civil Procedure have undergone substantial changes by the amendments, which have been introduced thereto by the Code of Civil Procedure (Amendment) Act, 2002. Order VI, Rule 17, as it stood before its amendment, read: 17. Order VI, Rule 17, as it stood before its amendment, read: 17. Amendment of pleadings: The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such, manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 8. After the amendment of Order VI, Rule 17 by the Code of Civil Procedure (Amendment) Act, 2002, Order VI, Rule 17 reads as under: 17. Amendment of pleadings: The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 9. From a bare reading of the provisions contained in Order VI, Rule 17, before the same underwent amendment in 2002, and the provisions of Order VI, Rule 17, as the same stand after amendments have been made thereto, it clearly transpires that by the Amendment Act, 2002, a proviso has been added to the provisions of Rule 17. Under this proviso, no application for amendment shall be made after trial has commenced 'unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial'. This clearly shows that while the parameters of the powers of the court to allow amendment has been retained, the embargo, which the Legislature has imposed, is that even if a case for amendment is made out by a person, amendment will not be permitted if hearing of the suit has commenced unless the court comes to conclude that in spite of due diligence, the party could not have raised the matter before the commencement of trial. To put it a little differently, Rule 17 casts a duty on the court to ensure that it does not permit amendment of pleadings after trial commences unless it has reasons to conclude that in spite of due diligence, the party, seeking amendment, could not have applied for amendment before the trial commenced. This duty has to be discharged by the court no matter how necessary the amendment, sought for, may be for the purpose of resolving the real issues in a given suit. Ideally, while allowing amendment of pleadings after commencement of trial, a court must assign cogent reasons as to why it considers that in spite of due diligence, the party, which Seeks amendment, could not have sought for amendment before the trial had commenced. 10. There is no dispute that an amendment of pleadings can be allowed if the amendment, sought for, does not change the nature or character of the proceedings in a given case and/or the amendment, sought for, would help in the resolution of the real controversy in a suit. When, however, hearing of a suit has already commenced and an amendment, sought for, is of such a nature that it would, if allowed, not change the nature or character of the suit or even when amendment is found to be necessary for determination of the real controversy in a suit, the legislative intent, as reflected by the proviso to Rule 17, is that such an amendment shall not be allowed unless the court comes to a conclusion that in spite of due diligence, the party, seeking amendment, could not have sought for the amendment before the trial commenced. In other words, after a trial commences, no amendment, even if necessary for resolution of a controversy in a suit, can be allowed by a court unless it comes to a finding that in spite of due diligence, the party, which has applied for amendment, could not have raised the matter before commencement of the trial. 11. In order to appreciate the legislative intent behind the presently amended Order VI, Rule 17, a survey of the legislative history behind the amendments, which Order VI, Rule 17 have undergone, is necessary. It is pertinent to note in this regard that the Law Commission's recommendations reflected that the provisions contained in Order VI, Rule 17, allowing amendments, were delaying disposal of suits. It is pertinent to note in this regard that the Law Commission's recommendations reflected that the provisions contained in Order VI, Rule 17, allowing amendments, were delaying disposal of suits. With a view to deal with this situation, the Legislature, while enacting the Code of Civil Procedure (Amendment) Act, 1999, deleted Rule 17 of the Code in its entirety. With this deletion of Rule 17, no amendment of any pleading, at any stage of the suit, became legal or feasible. This was followed by serious resistance by men in law all over the country. Responding to the agitation against complete deletion of the provisions of Rule 17, the Legislature, with the help of Code of Civil Procedure (Amendment) Act, 2002, restored Order 17 by recognizing power of the courts to grant amendment, but exercise of this power was restricted by adding a new proviso. This legislative intent in adding the proviso to Rule 17 is more than transparent, the intent being that after the trial commences, no amendment shall be allowed even if such an amendment is necessary for resolution of the real controversy in the suit or even if the amendment is such, which would not change the nature or character of the proceeding, unless the person, who applies - for such an amendment, convinces the court - before it (court) considers the nature of the amendments sought for - that in spite of due diligence, he could not have sought for the amendments earlier. A reference, in this regard, may be made to the case of Ajendraprasadji N. Pandey and Ors. v. Swami Keshavprakeshdasji N. and Ors., (2006) 12 SCC 1 , wherein the Apex Court has observed as under: 42. It is to be noted that the provisions of Order 6, Rule 17, Code of Civil Procedure have been substantially amended by the Code of Civil Procedure (Amendment) Act, 2002. 43. Under the proviso no application for amendment shall be allowed after the trial has commenced unless in spite of due diligence, the matter could not be raised before the commencement of the trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. 43. Under the proviso no application for amendment shall be allowed after the trial has commenced unless in spite of due diligence, the matter could not be raised before the commencement of the trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6, Rule 17 was due to the recommendation of the Law Commission since Order17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Code of Civil Procedure (Amendment) Act, 2002, provision has been restored by recognizing the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which arc sought to be raised by way of amendment by the Appellants were well within their knowledge on their court case and manifests the absence of due diligence on the part of the Appellants disentitling them to relief. 12. What emerges from the above discussion is that the proviso to Order VI, Rule 17 clearly shows that no application for amendment can be allowed by any court after the trial has commenced unless the court comes to the conclusion that in spite of due diligence, the party, which applies for amendment, could not have pressed for the amendment before the trial commenced. If the amendment, which a party seeks to introduce, will change the nature or character of the proceeding, such an amendment, it is not in dispute, cannot be allowed at all. Similarly, if the amendment, which a party seeks to introduce, is not necessary for determination of the real controversy in the suit, such an amendment may not be allowed. If the amendment, which a party seeks to introduce, will change the nature or character of the proceeding, such an amendment, it is not in dispute, cannot be allowed at all. Similarly, if the amendment, which a party seeks to introduce, is not necessary for determination of the real controversy in the suit, such an amendment may not be allowed. This clearly shows that the proviso, in question, would come into play even if a person makes out a case that the amendment, which is sought to be introduced, will not change the nature or character of the proceeding and/or that the amendment is necessary for resolving the real controversy in the suit between the parties concerned. It is not in dispute that trial of a suit commences with the settlement of the issues in a suit. 13. It has been sought to be contended that an amendment, even after commencement of a suit, can be allowed by a court by taking resort to its inherent powers as contained in Section 151 of the Code. It needs to be noted in this regard that the inherent powers, as contained in Section 151 of the Code, can be exercised by a court to make such Orders as may be necessary for the ends of justice or to prevent abuse of the process of the court and not when exercise of such a power is prohibited by the Legislature. The proviso to Rule 17 clearly shows that the legislative intent is that no amendment shall be allowed, however necessary such an amendment may be, unless the party, which seeks to make amendment, satisfies the court that he could not have earlier applied for such an amendment. By taking recourse to its inherent powers, a court cannot defeat this legislative intent inasmuch as the inherent power has to be exercised to enforce the object of a legislation and not to defeat the same. 14. I have carefully gone through the application seeking amendments and I notice that the Plaintiff did not give even faintest of indication, in his petition, as to why he had not made the statements, which have, now, been sought to be introduced, by way of amendment, to his plaint. 15. 14. I have carefully gone through the application seeking amendments and I notice that the Plaintiff did not give even faintest of indication, in his petition, as to why he had not made the statements, which have, now, been sought to be introduced, by way of amendment, to his plaint. 15. Coupled with the above, it is also worth noticing that according to the plaintiff, he had been delivered possession of the land of Scheduled A and B on 8.5.2000, i.e., on the date of execution of the sale deed. If it were so, the Plaintiff knew, on the date on which he had instituted the suit, that he was in possession of the suit land coveted by Schedule A and B. No such statement was, however, made in the plaint and no indication was given therein that pursuant to the agreement for sale, possession of whole of the suit property or of any party thereof had been handed over to the Plaintiff. The Plaintiff, in his petition for amendment, did not disclose as to why this statement had not been made in the plaint or at any subsequent stage until the time, when the stage for cross-examination of the Plaintiff's witnesses was reached. 16. What crystallises, from the above discussion is that there was no sign of diligence, far less due diligence, on the part of the Plaintiff and in such circumstances, in the light of the proviso to Rule 17, the amendments, in question, ought not have been allowed by the learned court below, particularly, when neither the Plaintiff nor the learned court below has assigned any reason whatsoever justifying directions for belated amendment of the plaint. This apart, in the face of the plaint, which has been placed before this Court, it is clear that the amendment, if allowed, will introduce a completely new case inasmuch it was never the case of the Plaintiff, in the light of his pleadings in his plaint, that the Plaintiff had been in possession of the suit land or any part thereof. In fact, the Plaintiff had sought for eviction of the Defendant Nos. 2 to 4 indicating thereby that pursuant to the sale, which had taken place in favour of the Defendant Nos. 2 to 4, they had been given possession of their respective purchased plots of land. In fact, the Plaintiff had sought for eviction of the Defendant Nos. 2 to 4 indicating thereby that pursuant to the sale, which had taken place in favour of the Defendant Nos. 2 to 4, they had been given possession of their respective purchased plots of land. This apart, while the Plaintiff had sought for a decree for permanent injunction restraining the Defendant No. 1 from transferring the suit land or any part thereof to any person, he (i.e., the Plaintiff) had not asked for injunction restraining the Defendant No. 1 from parting with his possession of the suit land or any part thereof. Such conduct of the Plaintiff clearly reflects that it had never been the case of the Plaintiff that notwithstanding the sale of the lands in favour of the Defendant Nos. 2, 3 and 4, the possession thereof had not been handed over to the Defendant Nos. 2, 3 and 4. In short, thus, the amendments, in the present case, would, if not interfered with, change the character of the suit. 17. In the light of what has been discussed and pointed out above, what becomes clear is that the Plaintiff had not been able to make out any case justifying amendment, which have been allowed by the learned court below. Viewed thus, it is clear that the impugned order cannot be sustained. 18. In the result and for the reasons discussed above, the impugned order, dated 8.4.2008, is hereby set aside and the learned court below is directed to proceed with the suit in accordance with law. 19. No order as to costs.