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2009 DIGILAW 886 (JHR)

Nita Devi v. Anima Biswas

2009-06-26

D.G.R.PATNAIK

body2009
Judgment Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. Shekhar Pd. Sinha, learned counsel for the Respondents. 2. Challenge in this writ application is to the order dated 19.04.2008, passed by the Munsif, 1st, Dhanbad in Title Suit No. 44 of 2005, whereby the petitioner’s petition dated 21.01.2008 under Order 6 Rule 17 of the Code of Civil Procedure for allowing her to amend the plaint was partly allowed and partly disallowed. 3. Facts of the petitioner’s case in brief are as follows: The petitioner had filed a Title Suit for specific performance of contract against the defendants/Respondents before the court below vide Title Suit No. 44 of 2005. The suit was based upon a contract dated 02.05.1997, under which the defendants had agreed to sell his lands to the petitioner against the stipulated amount of consideration. During the pendency of the suit, one Anil Kumar Singh, who was impleaded as the defendant no. 2 on the prayer of the plaintiff, on the ground that during the pendency of the suit, the defendant No. 1 had illegally transferred the suit land, in favour of the defendant no. 2 by sale deed dated 25.02.2005 and the defendant no. 2 had taken forcible possession of the suit from the plaintiff on 18.02.2006. On the ground that such being the subsequent developments, which had transpired during the pendency of the suit, the petitioner had filed her petition under Order 6 Rule 17 of the Code of Civil Procedure seeking permission to amend the plaint by allowing her to introduce the relevant facts pertaining to the subsequent developments and also the corresponding prayers The defendants had contested the petitioner’s prayer for amendment of the plaint. The learned court below by the impugned order had allowed the petitioner’s prayer for introducing only one of the amendments sought for and disallowed the rest. 4. From the perusal of the impugned order, it appears that the trial court had considered the prayer for the proposed amendments in Para 7 of the plaint as being ancillary to the original relief claimed by the plaintiff and therefore, had allowed the prayer for amendment in Para 7 of the plaint. However, as regards the prayer for amendment in Paras. However, as regards the prayer for amendment in Paras. 1 to 6 of the plaint, the trial court had rejected the same with the observation that the facts claimed to be introduced by way of amendment regarding the execution of the sale deed by the defendant No. 1 in favour of the defendant no. 2 and dispossession of the plaintiff from the suit premises, was well within the knowledge of the plaintiff, some of which, even at the time of drafting of the plaint and yet, the plaintiff did not take any initiative to introduce such facts by way of amendment to the plaint at the initial stage. The further reason assigned by the court is that such amendment cannot be allowed at the stage when the trial has commenced. 5. Assailing the impugned order, Mr. Indrajit Sinha, learned counsel for the petitioner would submit that the amendment sought for by the petitioner to be made in the plaint, is entirely related to the events which had transpired subsequent to the filing of the suit and it was necessary to bring on record the same for proper adjudication of the case. The learned court below, without appreciating the facts and circumstances of the petitioner’s case, has rejected her prayer only on the ground that such prayer for amendment was made at a belated stage. Learned counsel adds that there is no sufficient reason to partly allow the amendment prayed for and partly dismiss the same. It is also pleaded that the petitioner would suffer irreparable loss and injury, if the amendment sought for is not allowed to be made in the plaint. Learned counsel would explain that the trial had not commenced as because though the plaintiff was called upon to adduce evidence, but no evidence was adduced prior to the date of passing of the impugned order. Learned counsel adds that it is a settled proposition of law that the suit must be tried on the basis of the original cause of action and this principle governs not only in the suit but also in Appeals. To this proposition, however there are few exceptions. Learned counsel adds that it is a settled proposition of law that the suit must be tried on the basis of the original cause of action and this principle governs not only in the suit but also in Appeals. To this proposition, however there are few exceptions. Subsequent developments and altered circumstances are relevant in adjudging the nature and character of the claim made at all stages of the proceedings and if such subsequent developments are sought to be brought on record by way of amendment, the Court should exercise its discretion in favour of granting the amendment prayed for. Subsequent events can be brought on record by necessary amendments in the plaint and additions of new reliefs have also to be allowed to do complete justice. 6. Disputing the petitioner’s claim Mr. Shekhar Pd. Sinha, learned counsel for the Respondents argues that the petitioner’s instant writ application is fit to be dismissed, since the impugned order does not suffer from any illegality or impropriety whatsoever. Offering support to the impugned order, learned counsel submits that the fact that the defendant no. 1 had sold the suit lands to the defendant no. 2, was well within the knowledge of the petitioner/plaintiff, as would be apparent from the fact that upon such knowledge, the plaintiff had sought for impleading the defendant no. 2 as a necessary party to the suit. Furthermore, the plaintiff had filed a petition praying for injunction to restrain the defendant from dispossessing her from the suit lands. At that time also, the plaintiff did not take any initiative to incorporate any such purported subsequent developments in her plaint. On the other hand, when the suit reached the final stage of conclusion, the petitioner has sought for the amendment of her plaint not only to make the substantial additions in the plaint but also to incorporate a series of additional prayers. Learned counsel submits that it is a settled principle of law that no amendment can be allowed after the trial had commenced. In support of his contention, learned counsel would refer to and rely upon the judgment of the Supreme Court in the case of State Bank of Hyderabad-versus-Town Municipal Council, 2007 (1) CCC 1 (SC), in the case of Vidyabai & Others-versus-Padmalatha & Another, 2009 S.A.R. (Civil) 149 SC and also in the case of Himanshu Sekhar-versus-Kumar Mahesh Chandra & Another, 2008 (2) J.L.J.R. 335 . 7. In the present case, as per the petitioner’s original claim, she was in possession of the suit premises. She was admittedly dispossessed from the lands during the pendency of the suit. These are subsequent developments, which gives additional causes of action to the plaintiff. The fact that the defendant No. 1 had introduced the defendant no. 2 in the suit lands, was considered by the trial court while allowing the earlier prayer of the plaintiff to implead the defendant no. 2 as a necessary party to the suit. 8. As would appear, the proposed amendments are only ancillary and additional to the main prayer in the plaint for specific performance of the contract. The act of her being dispossessed from the suit premises after the suit was filed, being a subsequent event, it gives a cause of action and an amendment sought upon such cause of action, does not change the nature of the suit. 9. Delay in filing the petition for amendment of the pleadings on the basis of cause of action arising due to subsequent developments, cannot in itself be a ground to reject the amendment. The discretion to condone the delay is vested in the trial court, which has authority to impose cost for penalizing the party for the delay and compensating the other party. 10. It appears that without considering the relevant issues as to whether the amendment sought for, would be necessary for the just decision and adjudication of the dispute between the parties and without considering the fact as to whether even after having considered the fact that the amendment sought for does not tend to cause prejudice to the defendants nor alter the nature of the original relief claimed and also without considering the fact as to whether the delay in filing the amendment application can be condoned by imposing cost upon the plaintiff and compensate the defendant for the delay caused, the trial court has rejected the plaintiff’s prayer for amendment merely on the ground of delay. It is also observed that though in its opinion, the trial court has observed that the trial in the suit had commenced, but as explained by the learned counsel for the petitioner, which has not been denied or disputed specifically by the Respondents, the stage at which the trial stood, was only after the issues were framed. It is also observed that though in its opinion, the trial court has observed that the trial in the suit had commenced, but as explained by the learned counsel for the petitioner, which has not been denied or disputed specifically by the Respondents, the stage at which the trial stood, was only after the issues were framed. Though the plaintiff was called upon to adduce evidence but no evidence even by way of an affidavit was adduced by her. It cannot strictly be said therefore, that the trial had commenced and as such, the amendment if allowed, would cause prejudice to the defendant at the stage at which the trial stood. 11. The judgment referred to by the learned counsel for the respondents in the case of State Bank of Hyderabad (Supra) and also in the case of Vidyabai & Others (Supra), do not apply to the facts of the present case in as much as in the above referred cases, the stage of trial had actually progressed and commenced by adducing of evidences by the parties, whereas in the instant case, the trial did not commence by adducing evidence on behalf of the plaintiff. Likewise, the judgment in the case of Himanshu Sekhar (Supra) would also not apply in view of the fact that the facts, which were sought to be introduced by way of amendment, was though well within the knowledge of the plaintiff, even prior to the filing of the plaint, the trial had commenced and had considerably advanced with the evidences of the plaintiff’s witnesses concluded and the trial had progressed further after the defendants had also examined more than five witnesses. 12. In the light of the above discussions, I find merit in this writ application and accordingly, the same is allowed. The operation of the impugned order rejecting the petitioner’s/plaintiff’s prayer for carrying out the proposed amendments in Paras 1 to 6 of the plaint is hereby quashed. The amendment sought for by the plaintiff is allowed, subject however, to payment of a cost of Rs.5,000/-.