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2009 DIGILAW 76 (CAL)

Kinkar Bhusan Roy v. Gopal Chandra Mondal

2009-02-06

RUDRENDRA NATH BANERJEE

body2009
Judgment :- (1) This revisional application under Article 227 of the Constitution of India was filed by the plaintiffs/petitioners against the order dated 7th January, 2008, passed by learned Second Court of Civil Judge, (Junior Division), Basirhat, North 24-Parganas in Title Suit No. 214 of 1997, rejecting the prayer for amendment by the plaintiffs/ petitioners. (2) The plaintiffs/petitioners filed the Title Suit No. 214 of 1997 for declaration of title and permanent injunction and the defendant filed the written statement and ultimately after completion of examination and cross-examination of P.W.1 and P.W.2, the plaintiffs filed the instant application for amendment of the plaint. By such amendment the plaintiffs wanted to challenge the death certificate, filed by the defendant in respect of the death of Nihar Chandra Mondal on 7th October, 1940. By such amendment, the plaintiffs also tried to make out a case that the said Nihar Chandra Mondal while alive executed the sale deed dated 21st December, 1943, in favour of Nagendra Sardar and Khagendra Sardar, in respect of the suit property. Such evidence to the effect that Nihar Chandra Mondal died on 7th October, 1940 if established then the plaintiffs very case that the said Nihar Chandra Mondal sold the suit property to the plaintiffs- predecessor becomes unbelievable. (3) In the written statement itself, it appears that this story that Nihar Chandra Mondal was not at all alive at the time of so called transfer to plaintiffs-predecessor was not pleaded. After the evidence of the P.W.1 and P.W. 2 was recorded, that is, after the trial commenced, learned Court below did not want to incorporate such amendment of the plaint. (4) Being aggrieved by such impugned order of learned Court below passed on 7th January, 2008, rejecting the petition for amendment of the plaint. The plaintiffs/petitioners has filed this instant revisional application. (5) It is not disputed that the plaintiffs claim of title is a matter in issue in the suit and the plaintiffs claim such title on the basis of the registered deed of transfer made by the undisputed owner Nihar Chandra Mondal in favour of the predecessors of the plaintiffs. Now, although the defendants have not spoken of the death of the said Nihar Chandra Mondal prior to the said date of execution of the deed, but have produced a death certificate to the effect that the said Nihar Chandra Mondal died on 7th October, 1940. Now, although the defendants have not spoken of the death of the said Nihar Chandra Mondal prior to the said date of execution of the deed, but have produced a death certificate to the effect that the said Nihar Chandra Mondal died on 7th October, 1940. Now, if such death is proved before the Court below, then the very root of the plaintiffs case of acquisition of title by way of transfer by him cannot be substantiated. Thus from that aspect, the amendment sought for cannot be said to be irrelevant. But learned Court below has emphasized on the fact that the suit has commenced and accordingly such amendment cannot be allowed as is barred under the proviso to Order 6 Rule 17 of the Code of Civil Procedure. (6) It may be stated in this connection that if such death were not pleaded in the written statement itself, it should not have been suggested as a positive case of the defendants during the cross-examination of the plaintiffs or their witnesses. However, the said proviso to the provisions of Order 6 Rule 17 of the Code of Civil Procedure appears to be not mandatory but directory in nature. In this connection the decision reported in 2006 (12) Supreme Court Cases Page 1 (Ajendraprasadji N. Pandey v. Swam/ Keshavprakeshdasji N. and Ors) may be referred to. Considering the purposive interpretation of the proviso the delay in filing such application for amendment of the pleadingis not fatal if there is due diligence on the part of the applicant. (7) Accordingly had the Court had allowed such petition for amendment of the plaint, the defendants would not have been prejudiced as the defendants or their witnesses have not yet been examined. The plaintiffs could have controverted such death certificate filed by the defendant, even if, such document was marked exhibit. The mere marking of the document as exhibit cannot be said to have proved the truth of the content of such document. It is true, the plaintiffs have made delay in challenging such death certificate or date of death, as alleged by the defendants. But defendants also made delay in producing such death certificate. For such delay, if any, of the plaintiffs the Court could have imposed cost upon the plaintiffs. In stead, rejected the petition for amendment itself, which cannot be justified. (8) Mr. But defendants also made delay in producing such death certificate. For such delay, if any, of the plaintiffs the Court could have imposed cost upon the plaintiffs. In stead, rejected the petition for amendment itself, which cannot be justified. (8) Mr. K.J. Tiwari, learned Advocate for the petitioners has cited the decision reported in 2005 (13) Supreme Court Cases Page 89 (Sajjan Kumar v. Ram Kishan) and has contended that the crucial question in disposing of the petition for amendment of the pleading is how far the same becomes relevant or necessary for the purpose of ascertaining of the real controversies between the parties and when such decision is arrived at, the question of delay of filing petition for amendment of the pleading is not so fatal. At para 5 of the said judgment it has been opined that the proposed amendment was necessary for the purpose of bringing to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff-appellant succeeding in the suit. (9) Mr. Tiwari, has cited a decision reported in 2006 (4) Supreme Court Cases page 385 (Rajes Kumar Aggarwal and Ors. v. K.K. Modi and Ors.). In the said decision the cause of action arose during the pendency of the suit, which is not the case here. However, it has been held that if the proposed amendment is necessary for the purpose of determining the real controversy between the parties and the basic structure of the suit by such amendment is not changed, the Court should not go into the correctness or falsity of the case of the amendment. (10) Thus, considering all such facts and circumstances of the case and also considering that the rule of amendment is essentially a rule of justice and good conscience, the proposed amendment by the petitioners in the Court below should have been allowed. (11) The impugned order rejecting the amendment application filed by the petitioners in the Court below is set aside. (12) Accordingly, the proposed amendment of the plaint is allowed and such amendment be noted in the plaint and register. The defendants/ opposite parties may be given opportunity to file additional written statement, if any. (11) The impugned order rejecting the amendment application filed by the petitioners in the Court below is set aside. (12) Accordingly, the proposed amendment of the plaint is allowed and such amendment be noted in the plaint and register. The defendants/ opposite parties may be given opportunity to file additional written statement, if any. Learned Court below is directed to dispose of the suit after giving the parties reasonable opportunity of leading evidences upon respective pleadings after such amendment. The suit being of 1997, the learned Court below is directed to dispose of the suit according to law within two months from the date of communication of this order without granting unnecessary adjournments to the parties. (13) The revisional application is thus allowed. (14) There shall be no order as to costs. Let urgent xerox certified copy of this judgment be supplied to the parties, if applied for. S. K. G.