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2009 DIGILAW 142 (GAU)

Eastern Business Pvt. Ltd. v. Manika Dhar

2009-02-26

BROJENDRA PRASAD KATAKEY

body2009
JUDGMENT B.P. Katakey, J. 1. The Petitioners/Plaintiffs in Title Suit No. 294/2006 by the present petition has challenged the order dated 16.6.2008 passed by the learned Munsiff No. 2, Kamrup at Guwahati rejecting the application filed by them under 2002, Code of Civil Procedure praying for amendment of the pleadings in the plaint on the ground that they could not demonstrate that in spite of due diligence such application seeking amendment of the pleadings could not be filed before commencement of the trial, as required under proviso to Rule 17 of Order VI, Code of Civil Procedure. 2. The Petitioners/Plaintiffs instituted Title Suit No. 347/2003 (subsequently renumbered as Title Suit No. 294/2006 on being transferred) against the present Respondents praying for a decree declaring that the contract entered into between the Plaintiffs and Defendants on 28.12.1995 is still valid and binding; that the Plaintiffs have the right to complete the construction of the 4th floor of the suit premises and also for a decree for permanent injunction, contending inter alia that the Defendants who are the owners and possessors of a plot of land described in Schedule A to the plaint entered into an agreement for lease with the Plaintiff Nos. 2 and 3 on 28.12.1995, which is valid for thirty years with a clause for renewal, pursuant to which the Plaintiffs constructed the building stage wise and performed their part under the said agreement. It has further been averred that while construction of the 4th floor was in progress the Defendant No. 2 with the help of some other persons prevented the workers of the Plaintiffs from proceeding with further construction and forced the Plaintiffs to stop construction. It is also the contention of the Plaintiffs in the plaint that the said lease deed which has not been registered under the provision of the Registration Act was subsequently required to be registered for obtaining financial assistance from the bank for which they approached the Defendants who refused to do so, although a substantial sum has been invested by the Plaintiffs in constructing the said building. 3. 3. The Defendants contested the suit by filing a joint written statement denying the averments made by the Plaintiffs and also contending that the Plaintiffs have no valid right to make the construction over the suit land and there is no jural relationship between the parties and no jural relationship between the parties subsists as the Plaintiffs have breached the terms of agreement. The Defendants in the written statement have also filed a counter claim praying for a decree for eviction of the Plaintiffs from the suit premises on the ground of defaulter, subletting, bona fide requirement, as well as for breach of the terms of the agreement and for realization of the arrear of rents on the basis of the agreement dated 28.12.1995. 4. The Petitioners/Plaintiffs filed their written statement against the counter claim denying the claims of the Respondents/Defendants in the counter claim and stating inter alia that they have not violated the terms of the agreement executed between the parties and are neither defaulter nor sublet the house or the suit premise is required by the Defendants for their own use and occupation. 5. The said written statement came to be amended before the commencement of the trial of the suit, on the basis of the application filed by the Petitioners/Plaintiffs under Order VI, Rule 17, Code of Civil Procedure by insertion of the following words in para 10 of the written statement filed by the Petitioners/Plaintiffs against the counter claim and not being objected to by the Defendants on the ground that the said words were inadvertently left out: As a matter of fact the Plaintiffs have been themselves running a PCO there for convenience of hotel business. 6. The Petitioners/Plaintiffs, after commencement of the trial of the suit, filed another application under Order VI, Rule 17 of the Code of Civil Procedure praying for amendment of the pleadings in the written statement filed by them against the counter claim of the Defendants by way of insertion of the following para: 13(viii). That when the Plaintiffs took possession of the building by virtue of the agreement aforesaid the ground floor and only the structures and roofs of the first and second floor without any civil constructions as required for a hotel business were there. In the 2nd floor a few rooms were there haphazardly constructed wherein the Defendants were residing. That when the Plaintiffs took possession of the building by virtue of the agreement aforesaid the ground floor and only the structures and roofs of the first and second floor without any civil constructions as required for a hotel business were there. In the 2nd floor a few rooms were there haphazardly constructed wherein the Defendants were residing. Defendants had no arrangement for drinking water of their own and they were dependant on the water supplied by the Municipality both for their residence and the hotel "Madhumita". Plaintiffs therefore made civil constructions in the 1st floor and the 2nd floor for making them suitable for hotel business and they made 3rd floor habitable for the residence of the Defendants. The RCC roofs in the 3rd and 4th floor and six rooms in the forth floor were also constructed by the Plaintiffs themselves. For making all these structures and civil constructions the Plaintiff spent a sum of Rs. 13 lakhs and odd, which is reflected in their balance sheet. Besides the above the Plaintiffs installed a deep tube well for water supply at a cost of Rs. 1.5 lakhs. The Defendants have been using the water from this deep tube well from April 1996 without paying anything to the Plaintiffs. The Plaintiffs claimed proportionate amount of electricity charges and cost of maintenance of electrification and generator used for drawing water. 13. (ix) That the relationship between the Plaintiffs and the Defendants were very cordial and the Plaintiff No. 2 and the father of Plaintiff No. 3 used to address Defendant No. 1 as 'Didibhai'. In the year 1999 when the Plaintiffs again demanded charges for water supply, the Defendants assured to allow adjustment against monthly rent and also to modify the enhancement clause in the agreement. But a dispute arose and the Defendants did not take any decision. Nor they claimed enhanced rent thereafter. Regarding the two rooms in the 3rd floor comprising of an area of about 500 sq. ft. the same are being used by a mutual arrangement for the purpose of cooking and residence of the staff of the Defendants and the Plaintiffs. The rooms in the 4th floor were constructed by the Plaintiffs at a cost of about Rs. 3,00,000/- but the Plaintiffs are unable to use them. Plaintiffs therefore spent about Rs. ft. the same are being used by a mutual arrangement for the purpose of cooking and residence of the staff of the Defendants and the Plaintiffs. The rooms in the 4th floor were constructed by the Plaintiffs at a cost of about Rs. 3,00,000/- but the Plaintiffs are unable to use them. Plaintiffs therefore spent about Rs. 26 lakhs and odds in constructing and renovating the building, which is yet to be adjusted against the monthly rent. Moreover towards water charges and maintenance of tube well the Plaintiffs are entitled to more than Rs. 7,000/- p.m. from the Defendants since April 1996 for which the Plaintiff issued a notice by registered post on 27.10.2003 claiming Rs. 6320/- p.m. which has not been paid as yet. The Plaintiffs including the Plaintiff No. 1 company i.e. M/s Eastern Business Pvt. Ltd., was incorporated w.e.f. 30.7.1997 are therefore not defaulters. 7. The Petitioners/Plaintiffs in the said application seeking amendment of the pleadings in the written statement against the counter claim, with a view to demonstrate that in spite of due diligence they could not file such application before the commencement of the trial have stated as follows: 2. That when the written statement to the counter claim was filed in this case on 5.7.2004 certain relevant facts necessary for the determination of the real controversy between the parties, were not incorporated in the said written statement. It may be stated that the junior counsel Sri D. Bhattacharjee appearing for the Plaintiffs, who was their legal adviser as well and has been taking steps in the case from the beginning i.e. filing of the suit till sometime after the filing of the written statement to the counter claim was suffering from various ailments connected with his stomach and he was not regularly attending the Court due to his illness at the relevant time. After the amendment of the Code of Civil Procedure w.e.f. 1.7.2002, all the Civil Courts in general have become strict about granting adjournments. Accordingly Sri Bhattacharjee filed the written statement to the counter claim without being able to take proper instructions from the Plaintiffs due to his illness. During those days the Plaintiffs used to give instructions only to him. As a result certain vital facts stated below which have a direct bearing on the issues involved in this case have not been incorporated in the written statement to the counterclaim. During those days the Plaintiffs used to give instructions only to him. As a result certain vital facts stated below which have a direct bearing on the issues involved in this case have not been incorporated in the written statement to the counterclaim. 3. That now when the Plaintiffs gave instructions and narrated the facts of the case in detail to the present set of counsel for the purpose of preparing the evidence-on-affidavit, it was found that the pleadings necessary for adjudication of the disputes have not been properly made in the written statement. Hence it has become necessary to file this application. It may be stated that Sri Bhattacharjee, Advocate as still unwell and therefore the Plaintiffs and Sri Bhattacharjee have instructed the present set of counsel to take all the steps in the case. 8. The Respondents/Defendants objected to the prayer for amendment of the written statement against counter claim by filing the written objection contending inter alia that the said application has been filed by suppressing the fact of filing an application for amendment of the written statement at an earlier point of time and allowing the same and that the Petitioners/Plaintiffs could not demonstrate that in spite of due diligence they could not file such application before commencement of the trial and in fact the Petitioners/Plaintiffs are negligent and hence the prayer for amendment after commencement of the trial, in view of the provision contained under the proviso to Order VI, Rule 17 cannot be allowed. 9. The learned Munsiff No. 2, Kamurp at Guwahati, upon hearing the learned Counsel for the parties by the impugned order dated 16.6.2008 has rejected the application, on the grounds as noticed above. Hence the present petition. 10. I have heard Mr. D. Mazumdar, learned Counsel for the Petitioners/Plaintiffs and Mr. N. Choudhury, learned Counsel appearing on behalf of the Respondents/Defendants. 11. Referring to the averments made in the application filed under Order VI, Rule 17, Code of Civil Procedure, more particularly in Paras 2 and 3, as quoted above, Mr. Hence the present petition. 10. I have heard Mr. D. Mazumdar, learned Counsel for the Petitioners/Plaintiffs and Mr. N. Choudhury, learned Counsel appearing on behalf of the Respondents/Defendants. 11. Referring to the averments made in the application filed under Order VI, Rule 17, Code of Civil Procedure, more particularly in Paras 2 and 3, as quoted above, Mr. Mazumdar, learned Counsel for the Petitioners/Plaintiffs has submitted that it is apparent from the statements made therein that the Petitioners/Plaintiffs in spite of due diligence could not file the application under Order VI, Rule 17seeking amendment of the pleadings before commencement of the trial, as the written statement was filed hurriedly by the learned Counsel who was in fact suffering from illness and the defect in the written statement could be detected only at the time of preparation of the evidence on affidavit to be filed in the Court. According to the learned Counsel the learned Court below ought to have allowed the amendment as sought for as the Court should be liberal in allowing the amendment more so if such amendment is required for resolving the dispute between the parties effectively and completely. 12. It has further been submitted by the learned Counsel that as no serious injustice and irreparable loss is likely to be caused to the Respondents/Defendants in allowing the prayer for amendment, the Court should have allowed the prayer more so when the other party can be compensated with cost. According to the learned Counsel the approach of the Court in considering the prayer for amendment should be more liberal when it comes to the question of amendment of the written statement as the question of prejudice would be more less. Mr. Mazumdar, the learned Counsel further submits that where the refusal of the prayer for amendment would have the effect of excluding the party seeking amendment from raising the plea material to their defence, prayer for such amendment of the pleadings should be allowed and if necessary by imposing cost to compensate the other party for delay in disposal of the suit. 13. 13. Referring to the decision of the Apex Court in Salem Advocate Bar Association v. Union of India AIR 2005 SC 3353 , it is submitted by the learned Counsel for the Petitioners/Plaintiffs that the object of introduction of the proviso to Order VI, Rule 17 being to prevent frivolous application which are filed to delay the trial, the present application filed by the Petitioners/Plaintiffs against the counter claim ought to have been allowed, as it is necessary for deciding the real controversy between the parties effectively and completely and when it was not found by the learfied Court below that such application has been filed to delay the trial. According to Mr. Mazumdar, the Supreme Court in Usha Devi v. Rijwan Ahmed AIR 2008 SC 4147, has allowed the prayer for amendment of the pleadings, after commencement of the trial, even though the Petitioners/Plaintiffs therein were found to be not diligent in seeking amendment of the plaint, on the ground that such an amendment was necessary for the purpose of bringing to the fore the real question of controversy between the parties. 14. Mr. Choudhury, the learned Counsel for the Respondents/Defendants on the other hand has contended that the statements made in Paras 2 and 3 of the application filed under Order VI, Rule 17of the Code of Civil Procedure do not demonstrate that the Petitioners/Plaintiffs in spite of due diligence could not file such application before commencement of the trial and on the other hand the Petitioners/Plaintiffs earlier filed an application seeking amendment of the written statement filed against the counter claim of the Defendants which was allowed, which goes to show that the Petitioners/Plaintiffs were not at all diligent. According to the learned Counsel, since the trial has commenced, the Court can allow the amendment provided it is proved to the satisfaction of the Court by the party seeking amendment that in spite of due diligence they could not approach the Court for amendment of the pleadings before commencement of the trial, which in the instant case according to the learned Counsel, the Petitioners/Plaintiffs have failed to do. Mr. Choudhury in support of his contention has placed reliance on the decision of the Apex Court in Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji AIR 2007 SC 806 . 15. Mr. Choudhury in support of his contention has placed reliance on the decision of the Apex Court in Ajendraprasadji N. Pande v. Swami Keshavprakeshdasji AIR 2007 SC 806 . 15. I have considered the submission of the learned Counsel for the parties and also perused the materials available on record. 16. Order VI, Rule 17 of the Code of Civil Procedure empowers the Court to alter or amend the pleadings of a party at any stage of the proceedings and on such terms as may be just, when such amendment is necessary for the purpose of determining the real question in controversy between the parties. After amendment of the Code of Civil Procedure by Act 22 of 2002, a rider, however, has been put on such power of the Court to alter or amend the pleadings after commencement of the trial by introducing a proviso to Order VI, Rule 17, which stipulates that no application for amendment shall be allowed after the trial has commenced unless the Court has come to the conclusion that in spite of due diligence the parties could not raise the matter before the commencement of the trial. 17. The Apex Court in Ajendraprasadji N. Pande (supra) referring to its earlier decision in Kailash v. Nanhku and Ors. AIR 2005 SCW 2346 , has observed that the trial in a suit deemed to commence when the issues are settled and the case is set for recording of the evidence. In the said case the Apex Court has also observed that the party seeking amendment after commencement of the trial, in view of the provision contained in proviso to Order VI, Rule 17 of the Code of Civil Procedure, has to prove that he could not have raised the matter before the commencement of the trial. The Apex Court after noticing the relevant dates and events occurred in that case has refused to allow the prayer for amendment, as, such an amendment was sought for at a very belated stage when the deposition of three witnesses have already been recorded and the documents and evidence already tendered coupler with the rejection of the prayer for recasting the issues and if such amendment is allowed at that stage it would cause serious prejudice to the other party. 18. 18. In Usha Devi (supra) the Apex Court, in spite of filing the application seeking amendment after commencement of the trial and having failed to demonstrate that such prayer for amendment could not be made by the parties seeking amendment in spite of due diligence, allowed the prayer for amendment on the ground that such amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and refusal to permit the amendment would create needless complications at the stage of execution, in the event the Appellants therein succeeded in the suit. In State of A.P. and Ors. v. Pioneer Builders A.P. (2006) 12 SCC 119 the Apex Court has further observed that though the party cannot as a matter of right in all circumstances claim amendment of the pleadings, yet the power to allow the amendment is very wide which can be exercised at any stage of the proceeding in the interest of justice and such amendment should normally be allowed when no irreparable loss or injustice is likely to be caused to the other side. It has further been observed, that a liberal approach and not a hypertechnical approach is required to be adopted by the Court while dealing with the application seeking amendment of the pleadings particularly in a case where the other side can be compensated with cost. The Supreme Court, however, has observed that by way of amendment one distinct cause of action cannot be allowed to be introduced nor the subject matter of the suit can be changed. 19. In Usha Balashaheb Swami and Ors. v. Kiran Appaso Swami and Ors. (2007) 5 SCC 602 , the Apex Court after considering the provisions of Order VI, Rule 17 of the Code of Civil Procedure, as amended, has observed that the Court should be liberal in granting the prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side, but such prayer can be rejected if its not a bona fide one. It has further been observed that Courts should be more liberal in case of allowing amendment of a written statement than of a plaint as the question of prejudice would be far less in case of amendment of the written statement. 20. It has further been observed that Courts should be more liberal in case of allowing amendment of a written statement than of a plaint as the question of prejudice would be far less in case of amendment of the written statement. 20. It, therefore, transpires from the aforesaid decisions of the Apex Court that the prayer for amendment can be allowed at any stage of the proceeding provided it is bona fide one and not filed with the object of causing delay in disposal of the suit and when such amendment is required to decide the real controversy between the parties effectively and completely and also when no serious injustice or irreparable loss is caused to the other side, which cannot be compensated by awarding cost. The proviso to Order VI, Rule 17 of the Code of Civil Procedure, however, provides that unless the Court comes to a conclusion that in spite of due diligence the party who is seeking the amendment of the pleadings could not have raised the matter before the commencement of trial, such amendment cannot be allowed. 21. As observed, by the Apex Court in Salem Bar Association (supra) the object of the amendment of Order VI, Rule 17 of the Code of Civil Procedure, which, to some extent curtails the absolute discretion of the Court to allow amendment at any stage, is to prevent frivolous applications which are filed to delay the trial. 22. 'Due diligence' has not been defined in the Code of Civil Procedure. According to the Black's Law Dictionary (Eighth Edition) 'diligence' means-a continual effort to accomplish something, care, caution, the attention and care required from a person in a given situation. The meaning of 'due diligence' as given in the Black's Law Dictionary is-the diligence reasonably expected from and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation, which is also termed as reasonable diligence or common diligence. 'Due diligence', therefore, is such watchful caution and foresight as the circumstance of a particular case demands. The meaning of 'due diligence' would, therefore, for the purpose of Order VI, Rule 17 of the Code of Civil Procedure differs from case to case and has to be decided on the facts of a particular case. 23. 'Due diligence', therefore, is such watchful caution and foresight as the circumstance of a particular case demands. The meaning of 'due diligence' would, therefore, for the purpose of Order VI, Rule 17 of the Code of Civil Procedure differs from case to case and has to be decided on the facts of a particular case. 23. In the instant case, the Petitioners/Plaintiffs by way of amendment of the pleadings in the written statement filed against the counter claim filed by the Defendants, have sought to substantiate their plea that they are not defaulter, which is one of the ground on which the Defendants have prayed for passing a decree for eviction of the Petitioners/Plaintiffs from the suit premises. Keeping in view the allegations, in the counter claim of the Defendants as well as the controversy between the parties it, therefore, cannot be said that the pleadings sought to be amended is not necessary and on the other hand it appears from the proposed amendment that such pleadings are necessary for deciding the real questions in controversy between the parties effectively and completely, which normally ought to be allowed subject of course to fulfillment of the requirement of proviso to Order VI, Rule 17, which requires the party seeking the amendment to prove to the satisfaction of the Court that in spite of due diligence he could not file the application seeking the amendment before the commencement of the trial. 24. The averments made in Paras 2 and 3 of the application filed under Order VI, Rule 17 reveals the grounds on which the Petitioners/Plaintiffs could not earlier file the application seeking the amendment as proposed, contending that the learned Counsel appearing for the Petitioners/Plaintiffs, who was their legal advisor was suffering from various ailments and was not regularly attending the Court due to illness, had to file the written statement hurriedly without being able to take proper instruction from the Petitioners/Plaintiffs due to his illness. It also reveals from the averments made therein that the defects in the pleadings in the written statement was only detected when the Petitioners/Plaintiffs gave instruction and narrated the evidence in detail to the learned Counsel for the purpose of preparing the evidence on affidavit and immediately thereafter the application seeking amendment has been filed. It also reveals from the averments made therein that the defects in the pleadings in the written statement was only detected when the Petitioners/Plaintiffs gave instruction and narrated the evidence in detail to the learned Counsel for the purpose of preparing the evidence on affidavit and immediately thereafter the application seeking amendment has been filed. Such averments in the application has been controverted by the Defendants in the objection filed by them by contending that the Petitioners/Plaintiffs were not at all vigilant as had they been so they could have made the prayer for amendment while making such prayer on the earlier occasion. As the pleadings sought to be amended by the present application, was not prayed for in the earlier application, it would not automatically demonstrate that the Petitioners/Plaintiffs were not diligent. The Petitioners/Plaintiffs in the application have narrated that it was brought to the notice of the Petitioners/Plaintiffs only when the evidence on affidavit was being prepared for the purpose of filing the same. The pleadings in the said application filed under Order VI , Rule 17, as reproduced above, do demonstrate that the Petitioners/Plaintiffs in spite of due diligence could not file the application seeking amendment of the pleadings in the written statement against the counter claim before commencement of the trial. Moreover the suit is at the very early stage of the trial as only the issues have been framed and the parties are yet to file the evidence on affidavit. Hence the amendment, which is necessary to decide the real questions in controversy between the parties effectively and completely, if allowed it would not cause serious injustice or irreparable loss to the Defendants and they can be compensated by awarding cost for causing little delay in disposal of the suit. 25. In view of the aforesaid discussions, the impugned order dated 16.6.2008, passed by the learned trial Court is set aside. The prayer for amendment of the written statement filed by the Petitioners/Plaintiffs against the counter claim is allowed, subject to payment of cost of Rs. 10,000/- (Rupees ten thousand) only to be paid by Petitioners/Plaintiffs to the Respondents/Defendants, which shall be deposited before the learned Court below within a week from today. The Petitioners/Plaintiffs shall file the amended written statement within a week from today. 26. 10,000/- (Rupees ten thousand) only to be paid by Petitioners/Plaintiffs to the Respondents/Defendants, which shall be deposited before the learned Court below within a week from today. The Petitioners/Plaintiffs shall file the amended written statement within a week from today. 26. Keeping in view the year of filing of the suit, the learned Court below is directed to make an endeavour to dispose of the suit as expeditiously as possible preferably within a period of one year from today. 27. The parties are directed to appear before the learned trial Court on 5th March, 2009. 28. The revision petition is accordingly allowed with cost.