Research › Search › Judgment

Calcutta High Court · body

2009 DIGILAW 665 (CAL)

Ramawatar Sharma v. Prabir Kumar Mitra

2009-08-26

Jyotirmay Bhattacharya

body2009
JUDGMENT 1. THIS application under 227 of the Constitution of India is directed against an order being No. 119 dated 16th February, 2009 passed by the learned civil Judge (Senior Division), 3rd Court at Alipore in Title Suit No. 19 of 1993 whereby the defendants application for amendment of his written statement was rejected by the learned Trial Judge on contest. 2. THE defendant is aggrieved by the said order. Hence, the instant application has been filed before this Court by the defendant/petitioner herein. Heard Mr. Bhattacharya, learned Advocate, appearing for the petitioner and Mr. Pain learned Advocate appearing for the opposite party. Considered the materials on record including the order impugned. Let me now consider the merit of the instant application in the facts of the instant case. The facts leading to the filing of the instant revisional application are as follows :- The plaintiff/opposite party filed a suit for eviction against the opposite party herein for recovery of khas possession of the suit premises by evicting the defendant therefrom on the ground of expiry of lease by efflux of time. The said suit which was filed in the Court of the learned Civil judge, Senior Division, 3rd Court at Alipore was registered as Title Suit No. 19 of 1993. Initially the said suit was decreed ex parte as the defendant failed to contest the same. Subsequently, however, the ex parte decree was set aside in a Misc. Case filed by the defendant under Order 9 Rule 13 of the Civil Procedure Code. Ultimately, however, written statement was filed by the defendant in the said suit on 26th March, 2008 by making an evasive denial of the averment made by the plaintiff in the plaint. Neither the induction of the defendant in the suit premises on the basis of the lease deed was denied nor the expiry of the lease period by efflux of time was denied specifically by the defendant in the written statement. The defendant simply made an evasive denial of the claim made out by the plaintiff in the plaint and the plaintiff was called upon to prove the plaint case at the time of hearing of the suit. That is precisely all what was stated by the defendant in the said written statement. The defendant simply made an evasive denial of the claim made out by the plaintiff in the plaint and the plaintiff was called upon to prove the plaint case at the time of hearing of the suit. That is precisely all what was stated by the defendant in the said written statement. Long thereafter, when the suit was matured for hearing and was, in fact, fixed for peremptory hearing, the defendant filed an application under Order 6 Rule 17 of the Civil procedure Code inter alia praying for amendment of his written statement. The petitioner wanted to add by way of amendment that the petitioner constructed tin shed, brick built structure in the scheduled property. The petitioner further wanted to add that the scheduled property is now under the Controller of Thika Tenancy and the defendant as a thika tenant paid taxes regularly to the kolkata Municipal Corporation and to thika authorities concerned. 3. PETITIONERS prayer for such amendment was rejected by the learned Trial Judge primarily on the ground of delay in applying for such amendment by the defendant. The learned Trial Judge held that the petitioners prayer for amendment cannot be allowed as such prayer was made after the commencement of trial of the suit without any explanation as to why such amendment could not be sought for before commencement of trial. The learned Trial Judge further held that when the facts which were sought to be introduced by the proposed amendment were all within the knowledge of the defendant, the proposed amendment cannot be allowed unless the petitioner satisfies the Court about the reasons which prevented him from bringing those facts on record at the time of filing of his written statement. Let me now consider as to how far the findings of the learned Trial Judge can be supported in the instant case. Though it is true that a party cannot be encouraged to delay the trial of the suit under any circumstances but, at the same time, this Court holds that delay alone can not be the ground for which the petitioners application for amendment of his written statement, can be rejected. 4. Though it is true that a party cannot be encouraged to delay the trial of the suit under any circumstances but, at the same time, this Court holds that delay alone can not be the ground for which the petitioners application for amendment of his written statement, can be rejected. 4. HERE is the case where it is rightly pointed out by the learned Trial Judge that the reason which prevented the petitioner from bringing this facts in the written statement has not been sufficiently explained in this application even though the facts which were sought to be introduced by way of amendment were well within the knowledge of the defendant at the time of filing the written statement in the suit. But, at the same time, this Court cannot agree with the findings of the learned Trial Judge that the petitioners prayer for amendment cannot be allowed as, such prayer was made after the commencement of trial of the suit. Such conclusion was arrived at by the learned Trial Judge presumably because of the provision contained in the proviso to Order 6 Rule 17 of the Code of Civil Procedure. This Court cannot agree with the learned Trial Judge in this regard as this Court is of the view that the proviso of Order 6 Rule 17 of the Civil Procedure Code has no application in the facts of the instant case as the suit in which such amendment was sought for, was filed sometime in 1993 i. e. long before the Civil Procedure Code Amendment of 2002 came into force. As such, this Court holds that the proviso of Order 6 Rule 17 of the Code of Civil procedure cannot be a bar in allowing the petitioners prayer for amendment if such amendment is otherwise necessary for complete adjudication of the issue involved in the suit. On overall consideration of the original pleading of the defendant and the proposed amendment, this Court cannot hold that the amendment as sought for by the defendant is absolutely unnecessary for complete adjudication of the dispute involved in the suit. In fact, the proposed amendment is related to his objection regarding maintainability of the suit, which was evasively raised by the defendant in his original written statement. In fact, the proposed amendment is related to his objection regarding maintainability of the suit, which was evasively raised by the defendant in his original written statement. As such, the proposed amendment can be regarded as a clarificatory amendment, which cannot be disallowed for the reason as disclosed by the learned Trial Judge in the impugned order. That apart, this Court cannot ignore the settled principle of law that Court should be very liberal in allowing the defendant to amend his written statement as the amendment of written statement does not stand in the same footing as it stands in case of amendment of plaint where addition, alteration or substitution of the new cause of action in the plaint may be objectionable. 5. IN this regard reliance may be made on the decision of the Honble Supreme Court which was cited by Mr. Bhattacharya in the case of Usha Balashaheb Swami Vs- Kiran Appaso Swami reported in AIR 2007 SC 1663 . Now the question is as to how far the plaintiff will be prejudiced if such amendment is allowed at this stage. 6. TRIAL of the suit has just commenced. As such, if the petitioner is permitted to amend his pleading at this stage, the plaintiff/opposite party cannot suffer any prejudice, as he is not deprived of reasonable opportunity to give evidence even on the amended pleadings of the defendant in course of his examination during the trial of the suit. That apart, the loss, which the plaintiff may suffer for the delay in trial of the suit due to such amendment, can be compensated by costs. On the contrary, if the petitioners prayer for amendment is disallowed at this stage, the petitioner will not get any opportunity to prove his positive defence which he wants to introduce for the first time in his written statement by the proposed amendment. Under such circumstances, this Court holds that the impugned order cannot be retained on record. The impugned order, thus, stands set aside. The defendant is permitted to amend his pleading in the manner as sought for by him in his application for amendment of written statement subject to payment of cost of Rs. 2,000/- to be paid by the defendant to the plaintiff within one week from date. The impugned order, thus, stands set aside. The defendant is permitted to amend his pleading in the manner as sought for by him in his application for amendment of written statement subject to payment of cost of Rs. 2,000/- to be paid by the defendant to the plaintiff within one week from date. Leave is granted to the defendant to amend his written statement accordingly in terms of the provision of Order 6 Rule 18 of the Civil Procedure Code. The defendant is directed to serve a copy of this amended written statement upon the plaintiff and/or his learned Advocate on record in the Court below immediately after carrying out such amendment in his written statement. 7. THE revisional application is, thus, allowed. Urgent xerox certified copy of this order, if applied for, be supplied expeditiously after complying with all formalities.