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2010 DIGILAW 888 (CAL)

Dilip Kumar Dey v. Viswamitra Ramkumar

2010-07-30

SYAMAL KANTI CHAKRABARTI

body2010
Judgment :- Syamal Kanti Chakrabarti, J.: 1. In the instant application under Article 227 of the Constitution of India order no. 58 dated 03.01.2003 passed by the Learned 13th Bench, City Civil Court, Calcutta in Title Suit No. 974 of 1995 has been assailed. 2. The plaintiff/ petitioner contends that he is a tenant in respect of a shop room on the ground floor of premises no. 15, Radha Bazar Street, now renumbered as 60A, Radha Bazar Street, Calcutta at a monthly rental of Rs. 366.25p. payable according to English calendar month under Fida Hossain, Ahmed Bhoy and Jainul Bhoy Ahmed Bhoy is a partnership firm having office at 9, Ganesh Chandra Avenue, Calcutta – 700 012. The defendant/ opposite parties have claimed themselves as new owners of the entire premises on and from 31st day of January, 1983. The plaintiff/ petitioner filed Title Suit No. 974 of 1995 praying for a declaration and permanent injunction seeking the following reliefs:- a) A decree for declaration that the decree for restitution of the suit premises in favour of the defendants passed on 06.12.1993 by the Learned Judge, 12th Bench, City Civil Court at Calcutta in Misc. Case No. 1362 of 1993 under Section 144 of the CPC is not binding upon the plaintiff; b) A decree for declaration that the plaintiff being a lawful tenant in respect of the suit premises fully described in the schedule hereunder and marked with ‘A’ the title Execution case No. 10 of 1994 filed by the defendants for delivery of possession of the suit premises by way of executing a decree passed in Misc. Case No. 1362 of 1991 before the Learned Registrar, City Civil Court at Calcutta is not at all maintainable against the plaintiff; c) A decree for declaration that the defendants are not entitled to obtain delivery of possession of the suit premises by way of executing the decree originated in Misc. Case No. 1362 of 1993 granted by the Learned Judge, 12th Bench, City Civil Court at Calcutta; d) A decree for permanent injunction restraining the defendants, their men and agents, representatives and/or assignees from evicting the plaintiff from the suit premises fully described in the schedule hereunder by way of executing a decree which has been initiated already and numbered as Title Execution Case No. 10 of 1994 pending before the Learned Registrar Bench, City Civil Court, Calcutta, etc. 3. 3. In the said suit the plaintiff filed an application under Order 6 Rule 17 of the CPC for amendment of the plaint at the stage of final hearing. While disposing of the said application by order no. 58 dated 03.01.2003 the Learned Judge, 13th Bench, City Civil Court at Calcutta has observed that during pendency of the suit the defendants took possession of the suit premises from the plaintiff on 27.03.2002 as per order passed by the Learned Judge, 9th Bench, City Civil Court at Calcutta. The plaintiff’s contention is that the defendants have purchased only 15 per cent undivided share in the premises in question and after such purchase they are trying to change the nature and character of the suit premises by making addition and alteration to efface the identity of the suit premises from its original shape and size to the detriment of the interest of the plaintiff. The defendants has opposed the move and claimed that the application was filed on 05.07.2002, i.e., after 01.07.2002 and as such under the latest amendment of the Civil Procedure Code such an application is not maintainable after commencement of trial. As the plaintiff was not delivering possession of the suit premises the defendant purchasers took possession through execution proceedings with police help pursuant to an order which was ratified by the Hon’ble Division Bench of the High Court at Calcutta. The Learned Court below is of the view that if the amendment is allowed the nature and character of the suit will be changed and as the possession was taken on the strength of an order of a competent Court with police assistance the amendment is not required for proper adjudication of the dispute and at the belated stage if such amendment is allowed it will cause prejudice to the defendants and under the amended Civil Procedure Code such type of belated amendment should not be entertained without reasonable cause to the satisfaction of the Trial Court. Therefore, the said amendment petition was dismissed on contest without cost. 4. Learned lawyer for the petitioner has relied upon the principles laid down in (2005) 4 SCC 480 , 2008(3) ICC 399, 2008(3) ICC 612, 2004(4) ICC 821, 2009(2) ICC 1, 2007(1) ICC 337, 2006(3) ICC 222, 2006(3) ICC 375, (2001) 1 SCC 742 and (2008) 14 SCC 364 in support of his contention. 4. Learned lawyer for the petitioner has relied upon the principles laid down in (2005) 4 SCC 480 , 2008(3) ICC 399, 2008(3) ICC 612, 2004(4) ICC 821, 2009(2) ICC 1, 2007(1) ICC 337, 2006(3) ICC 222, 2006(3) ICC 375, (2001) 1 SCC 742 and (2008) 14 SCC 364 in support of his contention. He has submitted that just and proper amendment can be introduced at any stage as may be necessary for the purpose of determining the real questions in controversy and in appropriate cases where it is arguable that relief sought for by way of amendment would be barred by law of limitation, amendment should still be allowed and the disputed matter will be made the subject matter of an issue. Particularly in the ratio 2007(1) ICC 337 the Hon’ble Apex Court has held that the power to amend the pleadings under Order 6 Rule 17 CPC can be exercised at any stage of the proceeding in the interest of justice and that Court should adopt liberal approach and not a hyper technical approach where the other side can be compensated with cost. 5. The defendant nos. 1 to 3, however, have opposed the move by filing affidavit-in-opposition. It is contended therein that the present petitioner surrendered his tenancy in respect of a portion of the said premises with the expiry of the month of February, 1979 in favour of the predecessor-in-interest of opposite party no. 1 who happens to be defendant no. 1 in Title Suit No. 974 of 1995 and his ownership has been upheld by various decisions of the Hon’ble High Court and the Learned City Civil Court at Calcutta. In Title Suit No. 1784 of 1998 the present petitioner made an application for injunction and the said application for injunction was dismissed by the Learned Trial Court. No appeal was preferred against such order. In Title Suit No. 107 of 1989 the petitioner obtained an ex parte decree which was set aside upon an application made under Order 9 Rule 13 of the CPC and the said order was also not challenged by the petitioner. Prior to the setting aside of such ex parte order the petitioner put the said decree into execution and obtained possession of the suit premises from the lawful custody of the opposite party no. 1. After the said ex parte decree was set aside the opposite party no. Prior to the setting aside of such ex parte order the petitioner put the said decree into execution and obtained possession of the suit premises from the lawful custody of the opposite party no. 1. After the said ex parte decree was set aside the opposite party no. 1 initiated a proceeding for recovery of possession under Section 144 of the Code of Civil Procedure which was allowed on 06.12.1993 and the said order was then put into execution being Title Execution Case No. 10 of 1994. In the said execution case possession of the suit property was delivered by the Bailiff of the Learned City Civil Court at Calcutta with police help on 17.03.2002. The said order was challenged before the Hon’ble Court but the appeal was dismissed upholding the order passed under Section 144 of the CPC. It is further contented that the present petitioner as plaintiff of Title Suit No. 1784 of 1988 did not take steps for proceeding with the same and allowed the same to be dismissed and he had also withdrawn the Title Suit No. 107 of 1989 and as such the said two suits were not allowed to reach their finality. In the above context the order for restoration of possession was passed under Section 144 of the CPC which was upheld by the Hon’ble High Court at Calcutta. 6. Now by way of amendment of the plaint filed in T. S. No. 974 of 1995 the petitioner is seeking recovery of possession of the self-same suit premises and thereby is attempting to obtain what he himself has given up in Title Suit No. 107 of 1989. The opposite party no. 1 had made an application in Title Suit No. 974 of 1995 for stay of the said suit under Section 10 of the Code of Civil Procedure by reason of the pendency of the Title Suit No. 1784 of 1988 and this was contested by the petitioner herein as plaintiff of the said suit. If the amendment as prayed for in Title Suit No. 974 of 1995 is allowed, it will ipso facto revive the Title Suit No. 107 of 1989 and the petitioner will then be allowed to obtain indirectly what it would not have and cannot now obtain in Title Suit No. 107 of 1989. If the amendment as prayed for in Title Suit No. 974 of 1995 is allowed, it will ipso facto revive the Title Suit No. 107 of 1989 and the petitioner will then be allowed to obtain indirectly what it would not have and cannot now obtain in Title Suit No. 107 of 1989. In fact, the present petitioner is now attempting to obtain a decree for recovery of possession both in Title Suit No. 1784 of 1988 as well as in Title Suit No. 107 of 1989 after revival of Title Suit No. 107 of 1989 pursuant to the setting aside of the ex parte decree passed therein though he has abandoned recovery of possession in both the suits. It is further contended that the prayer sought to be incorporated by way of amendment is in the form of a mandatory injunction attempting to obtain a decree for recovery of possession in the shape of mandatory injunction which is contrary to the provision of law and will be treated as an attempt to couch and/or grab a decree for recovery of possession which is otherwise inadmissible. Therefore, such application is liable to be dismissed with cost. 7. In the amendment petition the plaintiff has prayed for inclusion of paragraph 19(A) and in the prayer portion of the plaint he has prayed for inclusion of a new prayer being (d)(i) which are quoted below: “19(A). During the pendency of this suit, the defendants No. 1, 2 and 3 sometime on 27.03.2002 obtained wrongful possession of the suit premises from the plaintiff as tenant. Such possession was obtained in total disregard of the observations made by their Lordships, Hon’ble Justice Samir Kumar Mukherjee and the Hon’ble Justice J. K. Mathur in an appeal being numbered F.A.T. 553 of 1993 on 16.9.94 on the self same mater relating to the suit premises. Excerpts, of the said judgment have been highlighted in paragraph 15 hereinabove. The plaintiff will crave reference of the said judgment at the time of hearing. The plaintiff has ascertained that defendant is have purchased only undivided 15% share in the premises. The proforma defendants and some other heirs of original owners since deceased, till remain owners of the premises. The claim of defendant Nos. 1 to 3 that they have become owners of entire premises by purchase is untrue and fraudulent. The plaintiff has ascertained that defendant is have purchased only undivided 15% share in the premises. The proforma defendants and some other heirs of original owners since deceased, till remain owners of the premises. The claim of defendant Nos. 1 to 3 that they have become owners of entire premises by purchase is untrue and fraudulent. They have even practised fraud in getting their name mutated in record of the Calcutta Municipal Corporation. The defendants have no manner of right to interfere with the possession of the suit premises by the plaintiff as tenant. It has further come to the knowledge of the plaintiff that the defendants No. 1 to 3 are now trying to make addition and alteration of the suit premises by changing the nature and character of the suit premises and if they succeed in such attempt, the suit premises cannot be identified in its original shape and size and the plaintiffs valuable right over the suit premises as tenant will be in jeopardy. The plaintiff states that the defendants No. 1 to 3 have no manner of right to cause such addition and/or alteration particularly when the matter is subjudice before this Ld. Court. In any event the defendants No. 1, 2 and 3 are bound to restore possession of the suit premises to the plaintiff in its original shape and size and the plaintiff is entitled to a mandatory order to that effect.” “(d)(i) A mandatory injunction directing the defendants No. 1, 2 and 3 to restore possession of the suit premises fully described in the schedule of the plaint in its original shape and size unto the plaintiff.” 8. The Learned Court below has refused to entertain such prayer on the grounds, (a) that the defendant nos. 1 to 3 have become owners of the suit premises by way of purchase and they have taken over possession not illegally but on the strength of an order of the Hon’ble High Court at Calcutta with the assistance of police. If such amendment is allowed at this stage it will cause prejudice to the defendants; AND (b) In view of amendment of the CPC such type of belated amendment prayer cannot be entertained after commencement of trial. 9. If such amendment is allowed at this stage it will cause prejudice to the defendants; AND (b) In view of amendment of the CPC such type of belated amendment prayer cannot be entertained after commencement of trial. 9. By the impugned amendment the plaintiff has sought for inclusion of some subsequent fact of possession of the suit premises during pendency of the suit by the defendant nos. 1, 2 and 3 in total disregard of the observations made by Their Lordships Hon’ble Justice Samir Kumar Mukherjee and the Hon’ble Justice J. K. Mathur in F.A.T. 553 of 1993 and to prevent their attempt to make addition and alteration of the suit premises by changing nature and character thereof. The instant suit also has been filed praying for a decree of declaration that the decree for restitution of the suit premises in favour of the defendants passed on 06.12.1993 by the Learned Judge, 12th Bench, City Civil Court at Calcutta in Misc. Case No. 1362 of 1993 under Section 144 of the Code of Civil Procedure, 1908 is not binding upon the plaintiff with further prayer for a declaration that the plaintiff being a lawful tenant in respect of the suit premises, no execution case for delivery of possession of the same by way of executing the decree passed in Misc. Case No. 1362 of 1991 is not at all maintainable against the plaintiff. Insertion of subsequent events of dispossession of the plaintiff from the property cannot be considered as a fact which will change the nature and character of the suit as apprehended by the Learned Court below. The success and failure of the plaintiff depends upon the evidence to be adduced by him and not upon the pleadings which is the bed rock of his legal claim and pleading cannot take the place of proof. Therefore, merely by allowing the amendment of the plaint the defendants cannot be treated as purchasers because by way of amendment no relief is granted but only this enables the contending parties to adduce oral and documentary evidence before the Learned Trial Court for consideration of the legality and propriety of their respective claims which will be adjudicated by the Learned Trial Court on the strength of such evidence as well as in accordance with law. Therefore, I hold that refusal of the prayer for amendment of the plaint is unjustified without determining the question of maintainability of the suit which has been argued before me at length by the learned lawyer for the defendant/ opposite parties. In such title suit the plaintiff has, in fact, tried to nullify the verdict of the Court in delivering possession of the suit property in favour of the defendants under Section 144 of the CPC has given wider power to the Court to entertain application for restitution of the property and there is no legal bar to entertain such prayer if similar prayer of the opponent was allowed. It enables the successful party to be placed in status quo ante and empowers the Court to order restitution when decree or an order is varied or reversed in any appeal, revision or other proceedings. So the Learned Court’s apprehension is not tenable in law. The other contention of the Learned Trial Court is that after recent amendment of the Civil Procedure Code no such prayer for amendment should be entertained after trial. 10. In 2009(2) ICC it has been set at rest by the Hon’ble Apex Court that the power of the Court under Order 6 Rule 17 of the CPC is wider enough and is circumscribed by the following two factors, (i) The application must be bona fide; (ii) the same should have caused injustice to the otherside; AND (iii) it should have affected the right already accrued to the defendants. Paragraph 15 of the same is quoted below: “15. There cannot be any doubt whatsoever that the principles of natural justice are required to be complied with. But, in a case of this nature, the same would be an empty formality. The facts are not disputed. The identity of the suit land has not been changed. It is not a case where, as submitted by Mr. Mahabir Singh, one land is being substituted by another. The fact that the town survey No. 463 is a joint family property is not in dispute. As indicated hereinbefore, it is the same plot which was the subject matter of sale and only in respect thereof the appellants herein could claim partition. Appellants have also furthermore not been able to show as to how and in what manner they have been prejudiced. ” 11. As indicated hereinbefore, it is the same plot which was the subject matter of sale and only in respect thereof the appellants herein could claim partition. Appellants have also furthermore not been able to show as to how and in what manner they have been prejudiced. ” 11. Considering the aforesaid circumstances, I hold that an attempt on the part of the plaintiff to incorporate some subsequent events by way of amendment of the plaint does not at all change the nature and character or cause prejudice to the defendant of the suit and that delay in filing such application cannot be treated as a ground for rejection of such prayer where incorporation of such subsequent fact becomes relevant for adjudication of the contention of the parties. Therefore, refusal of such prayer by the Learned Court below will lead ultimately to miscarriage of justice because the parties will not get adequate opportunities to adduce evidence in support of their contention which shall also violate the principles of natural justice. Therefore, I hold that there is sufficient merit in this application and the impugned order of the Learned Court below is not sustainable in law. The instant petition is thus allowed and the impugned order no. 58 dated 03.01.2003 passed in T. S. No. 974 of 1995 is hereby set aside. The prayer for amendment of the plaint as made by the plaintiffs is allowed without any prejudice to the rights and contentions of the parties. The Learned Court below is directed to amend the plaint and to give opportunity to the defendants for filing additional written statement within one month from the date of communication of this order and to dispose of the suit in accordance with law, preferably within a period of six months. 12. Urgent Photostat certified copy of this order, if applied for, be supplied to all the parties upon compliance of all necessary formalities.