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2010 DIGILAW 1333 (CAL)

Shanti Devi v. Gyanti Devi

2010-11-19

PRASENJIT MANDAL

body2010
Judgment :- Prasenjit Mandal, J This application is at the instance of the plaintiff and is directed against the order dated July 1, 2009 passed by the learned Civil Judge (Junior Division), Third Court, Howrah in Title Suit No.156 of 2007 thereby allowing an application for amendment of the written statement filed by the defendants/opposite parties herein. The short fact is that the plaintiff instituted the Title Suit No.156 of 2007 against the defendatns/opposite parties herein praying for a decree for eviction of licensee against the defendants from the suit property, as described in the schedule of the plaint, damages and other reliefs. In that suit, the defendants/opposite parties appeared and they filed a written statement. On the basis of the pleadings of the parties, issues were framed and the suit was at the stage of recording evidence. At that stage, the defendants/opposite parties herein filed an application for amendment of the written statement praying also for counter-claim by the proposed amendment. That application was allowed by the learned Trial Judge by the order impugned. Being aggrieved, the petitioner has come up with this application. Mr. Mukherjee, learned Advocate appearing on behalf of the petitioner, submits that the application for amendment of the written statement along with a prayer for counter-claim was made at a belated stage. It was filed when the evidence was being recorded. The defendants/opposite parties herein did not mention in their application for amendment of the written statement that they could not file the application for amendment earlier in spite of their due diligence. Therefore, in view of the proviso to Order 6 Rule 17 of the C.P.C., such amendment cannot be allowed. Mr. Mukherjee also submits that by the proposed amendment admission made by the defendant can not be taken away. He submits that while the defendants have admitted in their original written statement to the effect that Doman Shaw (since deceased), husband of the petitioner, purchased the suit property in the name of the Shanti Devi, the petitioner, by the proposed amendment, the defendants/opposite parties herein have wanted to incorporate that Doman Shaw purchased the property out of his own money and that at the time of purchase the suit property was an one storied building. Ultimately, it was made a six storied building and the expenses for construction were made with the fund of the defendants. Ultimately, it was made a six storied building and the expenses for construction were made with the fund of the defendants. So, by the proposed amendment, the defendants have wanted to withdraw the admission made earlier in the original written statement. Such a prayer for amendment should have been rejected. He also submits that the defendants have claimed the suit property on the basis of an agreement dated December 19, 1986 by the proposed amendment, while their specific case is that the cause of action for filing the counter-claim arose on July 18, 2007 and August 28, 2007. Therefore, the learned Trial Judge has committed a gross error in allowing the application for amendment of the written statement. On the other hand, Mr. Haradhan Banerjee, learned senior Advocate appearing on behalf of the opposite party, submits that Doman Shaw purchased the suit property in the benam of the petitioner and the consideration money was paid by him. The defendant no.1 is the wife of Doman Shaw and the other defendants are the sons and daughters of Doman Shaw. Therefore, after death of Doman Shaw, the defendants inherited the suit property as owners. So, the suit should be dismissed. The prayer for amendment of the written statement has been allowed to solve the dispute between the parties finally. The prayer for counter-claim has been made within the time limit. So, the learned Trial Judge was justified in allowing the application for amendment of the written statement upon payment of costs. Thus, he supports the judgment. Therefore, the questions that arises for decisions is whether the learned Trial judge is justified in allowing the application for amendment of the written statement filed by the defendants/opposite parties herein. Upon hearing the learned counsel for the parties and on perusal of the written notes of argument filed by the parties and the materials on record, I find that the plaintiff filed the suit for a decree for eviction of licensee, damages and other consequential reliefs. The suit was filed on August 28, 2007. The proposed amendment of the written statement along with a counter-claim was filed by the defendants on April 27, 2009 at the stage of recording evidence of the suit. Therefore, the proposed amendment along with a counter-claim was filed after the commencement of the trial of the suit. The suit was filed on August 28, 2007. The proposed amendment of the written statement along with a counter-claim was filed by the defendants on April 27, 2009 at the stage of recording evidence of the suit. Therefore, the proposed amendment along with a counter-claim was filed after the commencement of the trial of the suit. This being the position, the proposed amendment shall be governed by the proviso to Order 6 Rule 17 of the C.P.C. The defendants were required to satisfy the learned Trial Judge that though the trial of the suit had commenced, in spite of due diligence, they could not raise the matter before the commencement of the trial. There is no dispute that a written agreement was executed between Doman Shaw, the plaintiff and the defendant no.1 on April 18, 1980. According to such agreement, the plaintiff and the defendant no.1 were allotted specific portions of the suit property situated at 26, Gopal Ch. Mukherjee Lane under P.S. & District – Howrah. Now, after the commencement of the trial, the defendants have wanted to incorporate that another agreement dated December 19, 1986 was executed between Doman Shaw, the plaintiff and the defendant no.1 giving further allotment to the defendant no.1. The defendants have nowhere stated in the application for amendment of the written statement that in spite of due diligence they could not raise the points as made in the amendment before the commencement of the trial. They have simply stated that a few days back, prior to the date of filing of the application for amendment, they traced out the said agreement dated December 19, 1986. This being the position, I am of the view that defendants did not comply with the proviso to the Order 6 Rule 17 of the C.P.C. Mr. Mukherjee has referred to the decision of Ajendraprasad N. Pandey & Anr. Vs. Swami Keshavaprakeshdashji N. & ors. Reported in (2006) 1 SCC I in support of his contention that unless there is a pleading to the effect that in spite of taking utmost diligence the defendants could not raise the matter of amendment before the trial court earlier, the proposed amendment should not have been allowed. He has also referred to the decision of Vidyabai and ors Vs. Padmalatha & anr. He has also referred to the decision of Vidyabai and ors Vs. Padmalatha & anr. reported in (2009) 2 SCC 409 and thus he has submitted that before allowing the application for amendment, the Court must be satisfied that in spite of due diligence, the defendants could not introduce amendment before the commencement of the trial. Therefore, the learned Trial Judge should not have allowed the application for amendment of the written statement. On the other hand, Mr. Banerjee, learned senior Advocate appearing on behalf of the opposite parties, has referred to the decision of Gurbachan Singh Vs. Bhag Singh & Anr. reported in (1996) 1 SCC 770 and thus he has submitted that in a suit for injunction, counter-claim for possession can also be entertained. The application for counter-claim has been made within the time limit and so, the counter-claim is not barred by limitation. Since the agreement dated December 19, 1986 was discovered a few day back prior to the date of filing of the amendment, the counter-claim could be filed even after filing of the written statement. He has also relied on the decision of Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day reported in (1997) 8 SCC 174 in support of the impugned order. Upon due considerations of the matter in dispute and the amendment, I hold that since the application for amendment is devoid of the statement relating to the proviso to Order 6 Rule 17, such type of application cannot be entertained after the commencement of the trial. In the paragraph 55 of the decision of Ajendraprasad N. Pandey (supra), it has been decided that such type of amendment is not permissible. For convenience I am quoting the said paragraph no.55 below:- “55. We have carefully perused the pleadings and grounds which are raised in the amendment application preferred by the appellants at Ext. 95. No facts are pleaded nor are any grounds raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. 95. No facts are pleaded nor are any grounds raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants’ application at Ext. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondents-original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed.” Therefore, in view of such decision of Ajendraprasad N. Pandey (supra) and Vidyabai and ors. (supra) as referred to by Mr. Mukherjee, I am of the view that the proposed amendment should have been rejected by the learned Trial Judge. At the time of passing the order impugned, the learned Trial Judge has commented that at the time of disposal of the application for amendment of the written statement, the Court should not give any undue importance of technicalities. He should see that the matters in controversy be settled finally. This observation of the learned Trial Judge, I hold, cannot be supported in all occasions. When the trial of the suit has commenced, the controlling paragraph relating to the amendment of the pleading is the proviso to Order 6 Rule 17 of the C.P.C. Therefore, the learned Trial Judge was to consider whether the said controlling proviso to Order 6 Rule 17 of the C.P.C. have been complied with or not. Since there is no such paragraph in the amendment, the learned Trial Judge should have rejected the application for amendment of the written statement instead of making observation that the learned Trial Judge should not consider the technicalities of the matter. Since there is no such paragraph in the amendment, the learned Trial Judge should have rejected the application for amendment of the written statement instead of making observation that the learned Trial Judge should not consider the technicalities of the matter. Moreover, though it is true that the merit of the amendment is not under consideration at the time of disposing of the said application, yet the amendment should come in conformity with the earlier written statement filed by the defendants. While raising the plea of counter-claim, the defendants have clearly stated that the cause of action to file the amendment arose on July 18, 2007 and August 28, 2007. The defendants have based their counterclaim on the basis of an agreement dated December 19, 1986 meaning thereby that the cause of action of their counter-claim arose on December 19, 1986. There is no such contention in the proposed amendment but simply the cause of action of the amendment has been clearly stated as on July 18, 2007 and August 28, 2007, i.e., the dates of service of notice and filing of the suit. Therefore, the reasons for delay in filing the application for amendment of the written statement have not been properly explained. The suit was a simple one for eviction of licensee pending since August 28, 2007. Therefore, the defendants have wanted to incorporate amendment in order to frustrate the claim of the plaintiff, at the belated stage without any justified ground. Under the above circumstances, if the amendment is allowed to stand, it will certainly cause prejudice to the plaintiff. In that view of the matter, I hold that the learned Trial Judge has failed to exercise the jurisdiction vested in him. He has committed errors of law in allowing the application for amendment of the written statement. It also appears that though he allowed the counter-claim, he did not give any opportunity to the plaintiff to file a written statement to the counter-claim. This being the position, I am of the view that the order impugned cannot be sustained at all. The learned Trial Judge should have rejected the application for amendment. Accordingly, this application succeeds. It is allowed. The order impugned is hereby set aside. The application for amendment of the written statement filed by the defendants/opposite parties herein stands rejected. This being the position, I am of the view that the order impugned cannot be sustained at all. The learned Trial Judge should have rejected the application for amendment. Accordingly, this application succeeds. It is allowed. The order impugned is hereby set aside. The application for amendment of the written statement filed by the defendants/opposite parties herein stands rejected. The learned Trial Judge shall proceed with the suit in accordance with law and he shall dispose of the same within six months from the date of communication of this order. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.