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2008 DIGILAW 748 (CAL)

Gautam Roy v. Debendra Bajoria

2008-07-29

KALYAN JYOTI SENGUPTA, PRASENJIT MANDAL

body2008
JUDGMENT Sengupta, J. This appeal is against judgment and order of the learned Single Judge whereby and whereunder prayer for amendment of the plaint has been refused. Upon reading of the judgment and order impugned we do not find cogent reason for which the amendment was refused. The learned Judge has recorded briefly that the amendment which is sought to be made is totally barred under the provisions of law of limitation and if it is allowed by this Court at this stage shall help the petitioner (plaintiff) to bring a fresh cause of action which is totally barred under the provisions of law of limitation. 2. Now the only point is whether the aforesaid grounds are appropriate for refusal of amendment or not. In order to appreciate the present, appeal we feel that the case made out in the plaint before suggested amendment is to be set out as the learned Trial Judge felt by necessary implication that if the amendment is allowed that would amount to bringing of legally barred cause of action. Upon careful reading of the plaint as it appears to us the case of the plaintiff in gist is that the private trust created by his grand father had come to an end the moment his father died. In 1990 during the period of the trusteeship of his father the property in question was gifted to his brother who in his turn alleged to have created mortgage for obtaining loan from the first defendant. The collusive mortgage suit was filed and consent decree was passed and trust property was sold at a throw-away price. All these things had happened beyond his knowledge. The moment he came to know he had filed the suit alleging the decree obtained from this Court in connection with the suit property is a collusive act and his deceased father being the sole trustee did not have any right to create a gift in favour of his brother namely second defendant who consequently did not have any right. Nor did he acquire any right to create mortgage. So conveyance executed in terms of collusive decree is null and void. Nor did he acquire any right to create mortgage. So conveyance executed in terms of collusive decree is null and void. All these facts have been stated in the plaint but the relief claimed in the plaint is as follows:- (i) "For declaration that the Deed of Transfer dated 18.6.1971 executed by Sailendra Nath Roy, since deceased, as trustee to the Trust Estate of Amarendra Nath Roy is illegal and void and the same has not affected the trust property created by the said Amarendra Nath Roy. (ii) For declaration that the Trust created by Amarendra Nath Roy came to an end only on 23.11.90 when the said Sailendra Nath Roy died and as his death the suit property along with other residue properties covered by the said Deed of Trust vested in the plaintiff as one of the beneficiaries in terms of the said Deed of Trust. (iii) For further declaration that the deed of Conveyance executed by the defendant No. 2 in favour of the defendant No. 3 is void and inoperative and the same has not affected either the Trust property or the interest of the plaintiff as beneficiary thereof. (iv) For recovery of possession of the suit property evicting the defendant No. 1 or 3 or anybody claim through them. (v) Injunction. (vi) Receiver. (vii) Attachment (viii) For costs. (ix) For such other relief or reliefs to which the plaintiff may be entitled in law and in equity." 3. The original suit was filed in the appropriate Court at Alipore where on demurer action the plaint was returned on the ground of jurisdiction as the decree passed by the Court was under challenge and the said plaint was presented in this Court and this was registered as a regular suit. Again the defendant had taken out an application for rejection of plaint and it obtained order of status quo ex parte. Being aggrieved by the ex parte order of status quo the appellant before us had preferred an appeal, which was ultimately disposed of with clarificatory order of status quo. 4. Again the defendant had taken out an application for rejection of plaint and it obtained order of status quo ex parte. Being aggrieved by the ex parte order of status quo the appellant before us had preferred an appeal, which was ultimately disposed of with clarificatory order of status quo. 4. Subsequently, the present application for amendment was taken out with the amended prayers:- (i) "For declaration that the Deed of Transfer dated 18.6.1971 executed by Sailendra Nath Roy, since deceased, as trustee to the Trust Estate of Amarendra Nath Roy is illegal and void and the same has not affected the trust property created by the said Amarendra Nath Roy. (ii) For declaration that the Trust created by Amarendra Nath Roy came to an end only on 23.11.90 when the said Sailendra Nath Roy died and as his death the suit property along with other residue properties covered by the said Deed of Trust vested in the plaintiff as one of the beneficiaries in terms of the said Deed of Trust. (iia) Order dated 12th February, 1980 and decree dated 22nd May, 1980 are illegal, void and not binding on the plaintiff and liable to be set aside. (iii) For further declaration that the deed of Conveyance executed by the defendant No. 2 dated 14.02.1980 in favour of the defendant No. 3 is void and inoperative and the same has not affected either the Trust property or the interest of the plaintiff as beneficiary thereof. (iiia) Decree be passed directing the purported Deed of Conveyance dated 14th February, 1980 be presented before the Court and be delivered back to the plaintiff and be cancelled. (iv) For recovery of possession of the suit property evicting the defendant No. 1 or 3 or anybody claim through them, (v) Injunction, (vi) Receiver, (vii) Attachment, (viii) For costs, (ix) For such other relief or reliefs to which the plaintiff may be entitled in law and in equity." 5. Mr. Ajoy Krishna Chatterjee, Senior Advocate, appearing with Mr. Asit Kumar Chatterjee-II, Advocate, urges in support of the appeal that the learned Trial Judge has erroneously held that the amendment cannot be allowed as it is barred by limitation. Mr. Ajoy Krishna Chatterjee, Senior Advocate, appearing with Mr. Asit Kumar Chatterjee-II, Advocate, urges in support of the appeal that the learned Trial Judge has erroneously held that the amendment cannot be allowed as it is barred by limitation. The finding of the learned Judge that barred claim sought to be incorporated in the plaint is patently wrong if one compares the proposed amendment with the original one, cause of action and grievance of the plaintiff in the plaint remain untouched and this amendment is really sought to be incorporated by way of elucidation. The decree which is sought to be challenged in the present suit was obtained by practising fraud, and collusively. In the original plaint the particulars of fraud were not there and unless the same are incorporated the suit must fail. He contends further that there is no time limit to make any application for amendment of the plaint. The approach of the Law Court now-a-days is that taking liberal view all the controversies between the parties are brought to an end as early as possible. In the body of the plaint the order dated 12th February, 1980 and decree dated 22nd May, 1980 have been challenged but in prayer portion of the plaint relief sought to be incorporated is missing. The Deed of Conveyance pursuant to the above decree was challenged as the date thereof was not mentioned in the earlier plaint. In support of his submission he has relied on the following decisions of the Supreme Court reported in AIR 1957 SC 357 , AIR 1969 SC 1267 , 2001(2) SCC 472 , AIR 2004 SC 4102 and a decision of this Court reported in 1989 (1) CHN 345 . 6. Mr. Das, learned Senior Advocate appearing for the respondent No. 1 submits that the order of rejection of the amendment application by the learned Trial Judge is well reasoned. If the proposed amendment is looked at carefully it would appear that barred claim is sought to be incorporated. The original decree and order was not challenged and the same was sought to be brought in the present suit after a long time. The plaintiff was having knowledge of passing of the decree for long time and this will appear from a judgment rendered by the Writ Court in the writ petition filed by the plaintiff himself. The original decree and order was not challenged and the same was sought to be brought in the present suit after a long time. The plaintiff was having knowledge of passing of the decree for long time and this will appear from a judgment rendered by the Writ Court in the writ petition filed by the plaintiff himself. So the statement and averment made that knowledge of existence of the passing of the decree in the present application as well as the proposed amended plaint is patently false and as such they have not come with clean hands. The amendment cannot be allowed as a matter of right and it is absolute discretion of the Court which will not be exercised favourably unless a litigant comes with a clean hand. He further submits that even if an amendment is allowed the same must not relate back to the date of institution of the suit. Actually attempt to make the plaint is nothing but an exercise of camouflage by reason of the fact that had a fresh suit been filed in respect of the relief claimed by way of amendment the same would have been barred by limitation. Therefore, the barred claim is sought to be brought into the present plaint which was filed long time back in order to overcome the hurdle of limitation. 7. He further contends that the point urged and the decisions cited in this Appeal Court were not urged or placed before the learned Trial Judge, therefore, if the Court thinks fit the Court can remand the matter back to the learned Trial Judge for taking fresh decision. In support of his contention he has relied on the following decisions reported in 1979 (2) CLJ 284 (Khagendra Nath Mukherjee & Ors. v. Dhirendra Nath Mukherjee), 1997(2) SCC 611 (T.L. Muddukrishana & Anr. v. Lalitha Ramchandra Rao (Smt.)) and 1992 (2) CHN 76 (Pranatesh Chandra Mukherjee & Ors. v. Smt. Snigdha Mukherjee & Anr.). The decision reported in 97 CWN 303 has been relied on in the context of his submission that the plaintiff was having prior knowledge of existence of the decree. 8. We have heard the learned Counsel extensively and we have gone through the record before us. v. Smt. Snigdha Mukherjee & Anr.). The decision reported in 97 CWN 303 has been relied on in the context of his submission that the plaintiff was having prior knowledge of existence of the decree. 8. We have heard the learned Counsel extensively and we have gone through the record before us. Upon careful reading of the judgment of the learned Trial Judge the reasons for refusal of the amendment are as follows:- (1) The prayer and the statement and averment made by way of amendment is barred under the provisions of the laws of limitation; (2) The plaintiff has brought a fresh cause of action. 9. The learned Judge of course did not discuss elaborately how the claim is barred or for that matter the cause of action is also barred under the provision of Limitation Act. In this context the submission of Mr. Das for remanding the matter would have been appropriate step, but having regard to the age of the suit we do not think that it would be prudent for this Court to remand the same on that ground. Simply because the learned Single Judge did not elaborate the reasoning for His Lordship's conclusion on that ground this matter cannot be remanded. 10. We have had the advantage of ablest assistance of the learned Counsels for both the sides, both on fact and law, and further got all the materials before us. We, being the Appellate Court and having co-extensive jurisdiction with that of learned Trial Judge can decide the matter once for all. As such, the decisions cited by Mr. Das for remanding the matter are not applied for our assistance. 11. According to us there is no time limit for making an application for amendment and it can be done at any stage even at the appellate stage in the highest Court. If it is found that the matter of controversy can be brought to an end once for all between the parties by the amendment the Court can allow such amendment liberally provided of course that by this time the defence taken in the written statement is not jeopardized. The controversy in this appeal is whether the plaintiff has brought a fresh cause of action or such cause of action and the reliefs sought in relation thereto are barred by limitation or not. The controversy in this appeal is whether the plaintiff has brought a fresh cause of action or such cause of action and the reliefs sought in relation thereto are barred by limitation or not. This will be clear from the language of the provision of Order VI Rule 17 of the Code of Civil Procedure:- "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 the 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." 12. The language of the above provision nowhere provides that a barred claim cannot be brought into existence by way of amendment but the pronouncement of the Courts on this issue is clear in cases where barred claim can be allowed and where it cannot be. 13. A good number of judgments of the Supreme Court have been cited on the issue of incorporating barred claim by way of amendment. In a fairly old decision the Supreme Court in case of L.J. Leach and Company Limited v. Messrs. Jardine Skinner & Co., reported in AIR 1957 SC 357 had ruled amongst others:- "It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it if that is required in the interests of justice" (Emphasis supplied). 14. The above view of the Supreme Court was subsequently followed by three Judges’ Bench in the case of T.N. Alloy Foundry Company Limited v. T.N. Electricity Board, reported in 2004 (3) SCC 392 . 15. Taking note of the above two decisions of the Supreme Court in case of Pankaja & Anr. 14. The above view of the Supreme Court was subsequently followed by three Judges’ Bench in the case of T.N. Alloy Foundry Company Limited v. T.N. Electricity Board, reported in 2004 (3) SCC 392 . 15. Taking note of the above two decisions of the Supreme Court in case of Pankaja & Anr. v. Yellappa (D) by L.Rs & Ors., reported in AIR 2004 SC 4102 and another decision rendered in case of Ragu Thilak D. John v. S. Rayappan, reported in 2001 (2) SCC 472 it has been held that the amendment sought for could not be declined. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case. The plea of limitation being disputed could be made a subject-matter of the issue allowing amendment as prayed for. Ultimately, in the case of Pankaja (supra) the Supreme Court has accepted the proposition of law that if the point of limitation itself is arguable or debatable at the stage of application for amendment, amendment should be allowed. The next question involved in this matter is whether by the proposed amendment any new case and/or cause of action is sought to be brought in the plaint. It is well-settled that new cause of action cannot be brought in but applicability of this principle depends upon each and every individual fact and circumstance of the case. There are large number of decisions on this point but there is line of distinction between new cause of action and inconsistent one and the test to find the same. In the case of Sampath Kumar v. Ayyakannu & Anr., reported in AIR 2002 SC 3369 it has been ruled on this point that the test is whether the plaintiff could file a fresh suit for the same relief and whether such relief had nexus or connection with the present suit if amendment is allowed. In this case the Supreme Court relied on the earlier decision of the same Court in case of Rukhmabai v. Lala Laxminarayan, reported in AIR 1960 SC 335 which held that where a suit was filed without seeking an appropriate relief it is a well-settled rule of practice not to dismiss the suit automatically but to allow the plaintiff to make necessary amendment if he thinks to do it. 16. 16. According to us after analysis of the decisions quoted above we think that discretion has to be exercised judiciously particularly when alleged barred claim is sought to be incorporated by way of amendment. We think that if the proposed amendment in the plaint on the face of it appears to be barred on the date of filing of the application such proposed amendment should not be allowed. But if on the face of the proposed amendment the claim or related cause of action does not appear to be barred and it might appear so after adjudication preceded by filing of written statement and evidence being adduced then such an amendment should be allowed because this controversy itself is an issue and this issue would be a mixed issue of fact and law. To elucidate this we state that in order to establish point of limitation by the defendant it is to be examined whether any evidence is required and without the same this plea can be decided effectively. Obviously this type of issue becomes a preliminary issue before the suit is decided on merit. The aforesaid proposition has been laid down in a Division Bench judgment of this Court reported in AIR 1950 Cal 379 (Abdul Rahim Naskar v. Abdul Jabbar Naskar & Anr.). Moreover, in the Supreme Court decision in case of L.J. Leach & Co. Ltd. v. Messrs. Jardine Skinner & Co., reported in AIR 1957 SC 357 noted above it is observed that limitation is not the absolute bar but it is one of the factors to be taken into consideration at the time of the trial of the suit. 17. The learned Single Judge of this Court in case of Aparna Ghosh & Anr. v. Sarupchand Roychowdhary & Ors., reported in 2005 (1) CHN 140 has followed the same principle and held that as the question of limitation is a mixed question of law and fact the prayer for amendment cannot be refused on the ground of the same being barred. 18. Keeping in view the aforesaid discussion now we have checked up the proposed amendment in the plaint. We do not find upon plain reading of the same that the statement and averment made and the relief claimed in plaint could be said to be barred by limitation. Mr. 18. Keeping in view the aforesaid discussion now we have checked up the proposed amendment in the plaint. We do not find upon plain reading of the same that the statement and averment made and the relief claimed in plaint could be said to be barred by limitation. Mr. Das of course drawing our attention to the judgment rendered in a writ petition filed by the plaintiff himself reported in 97 CWN 303 says that claim is perfectly barred by limitation as the plaintiff came to know of passing of decree and order long time back. We are of the view that this judgment delivered in the writ petition of Gautam Roy, the plaintiff herein, could or could not be a factor as a piece of evidence at the time of the trial of the suit. At this stage this cannot be looked into. Next it is contended that the plaintiff has sought to bring evidence in the camouflage of a pleading. We have seen necessary averments which have been pointed out to us by Mr. Das and we are of the view that the statement and averment do not appear to be pleading of evidence, rather it is pleading itself. The petitioner's case is based on fraud, collusion, misrepresentation etc. Therefore, the particulars of such fraud have to be pleaded as required under the Civil Procedure Code Order VI Rule 4. Unless those particulars are given in our view the plaintiff may be non-suited. The particulars of a pleading wherever necessary is not a cause of action. The particulars of fraud, undue influence, misrepresentation, breach of trust, willful default are part and parcel of the pleading and the same can be brought in subsequently by way of amendment as the same do not alter the situation or case made out already. In our view mere statement of fraud is nothing but skeleton and the particulars really supply flesh & blood to complete shape viz. cause of action based on fraud etc. 19. Upon careful reading of both the plaints viz. the original plaint and proposed amended plaint juxtapositioned, we do not find any new statement and averment having been made or new relief claimed. cause of action based on fraud etc. 19. Upon careful reading of both the plaints viz. the original plaint and proposed amended plaint juxtapositioned, we do not find any new statement and averment having been made or new relief claimed. The prayer for relief in relation to order dated 12th February, 1980 and decree dated 22nd May, 1980 for cancellation of the Deed of Conveyance is nothing but a comprehensive relief claimed based on the cause of action which already exists in the original plaint. It is settled by judicial pronouncement of the Division Bench of this Court that for the purpose of clarification and/or elucidation of the facts already on record amendment can be allowed. (See Mala Rani Samanta v. Kamal Bose) reported in 1989 (1) CHN 345 . 20. Mr. Das says that the proposed amendment is a camouflage of new claim. We do not find any camouflage in this matter. The decision cited by him in connection with this proposition of the Division Bench judgment of this Court reported in 1979 (2) CLJ 284 (Khagendra Nath Mukherjee & Ors. v. Dhirendra Nath Mukherjee) is not applicable to the facts and circumstances of this case. In that case, in the regular title suit relief for revocation of probate granted by the Probate Court was sought to be incorporated in the form of a declaratory relief. On this fact, it was held that it was a camouflage action by way of amendment to bring a case inconsistent with the original cause of action. In view of the discussion as above we think that the judgment and order of the learned Single Judge is not sustainable. The same is accordingly set aside. We allow the prayer for an amendment, however, the point of limitation is kept open. If on receipt of the evidence the proposed claim made herein is found to be barred obviously this has to be decided as the preliminary issue before the Court decides the matter on merit. Therefore, there will be an order in terms of Prayers (a), (b) and (c) of the Master Summons, however, the plaintiff/appellant shall pay costs assessed at 300 G.Ms. to the contesting defendant/respondent. Such payment of costs is a condition precedent and the same shall be paid within a period of 3 weeks from the date of the receipt of the copy of the judgment and order. to the contesting defendant/respondent. Such payment of costs is a condition precedent and the same shall be paid within a period of 3 weeks from the date of the receipt of the copy of the judgment and order. We make it clear that this order of amendment will not affect any demurrer action, if pending, before the learned Trial Judge. It would be open for the defendant to file additional written statement if so advised within a period of 8 weeks from the date of the receipt of the amended copy of the plaint. The amendment has to be carried out by the department within 4 weeks from the date of the receipt of the signed copy minutes of this order. Mandal, J. : I agree.