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2011 DIGILAW 1232 (CAL)

Kanta Kumari v. Ishwarchand

2011-09-06

INDIRA BANERJEE

body2011
Judgment : INDIRA BANERJEE, J. This application under Article 227 of the Constitution of India is directed against an order dated 14th June, 2011 passed by the learned Civil Judge, Senior Division, Port Blair, rejecting the application of the petitioner for amendment of the plaint. The plaintiffs filed a suit in the Court of the Civil Judge, Senior Division, Port Blair being Title Suit No.81 of 2003 for declaration of title and recovery of possession of the suit property as specified in the plaint. In the suit the plaintiffs sought the following reliefs:- a. A decree against the defendant No.1 to 6 declaring that the Plaintiffs alongwith defendant No.7 are the rightful, and recorded owner of the Plaint scheduled property and every part thereof to the exclusion of the defendant No.1 to 6 who has no manner of right/title/interest/claim to possess/occupy/enjoy/remain or continue in occupation or enjoyment of the scheduled property. b. A decree against the defendant No.1 to 6 for recovery of peaceful possession/occupation of the land under their possession measuring 1063 Square meters and every part thereof from the defendant No.1 to 6 and for handing over physical possession of the same to the Plaintiffs. c. A decree against the defendant No.7 for recovery of peaceful possession/occupation of the land under his possession measuring 83 Square meters and every part thereof from the defendant No.7 and for handing over physical possession of the same to the Plaintiffs. d. An order directing the Tehsildar to mutate the suit land, which belonged to the said Jai Chand in the name of the plaintiffs. e. An order of permanent injunction restraining the defendants from undergoing any kind of construction or any kind of act amounting to dispossession of the Plaintiffs in respect of the suit land. f. A decree against the defendant for all costs of the suit. g. A decree against the defendants for such further or other relief to which the Plaintiffs may be found entitled.” The defendant No.1 and the defendant No.6 filed their respective statements and contested the suit. After hearing the parties, the learned Judge passed a judgement and order allowing the suit in part by granting a decree of declaration of ownership as against the defendant no.1. The suit was however dismissed as against the defendant no.6. After hearing the parties, the learned Judge passed a judgement and order allowing the suit in part by granting a decree of declaration of ownership as against the defendant no.1. The suit was however dismissed as against the defendant no.6. Two appeals being T.A. No.01 of 2006 and T.A. No.02 of 2006 were filed from the said common judgement and order, one by the defendant no.1 and the other by the plaintiff nos. 1,2,3 and 4. After the decree the defendant no.6 died intestate leaving the Opposite Party Nos.7 to 10 in this application as his heirs and successors. The appeals were disposed of by a common judgement and order dated 23rd September, 2008 whereby the decree passed by the trial court was set aside and the suit remanded for adjudication, with a direction on the Trial Court to give an opportunity to the plaintiffs to inter alia incorporate, by amendment of the plaint, the relief of decree for partition. Two appeals filed against the appellate judgement and order, being FMAT Nos.005 and 006 of 2008, were disposed of by a judgement and order dated 22nd June, 2009, the operative part of the said order is set out hereinbelow for convenience:- “… …We therefore, set aside the decree of the learned Trial Judge and also modify the judgment and decree of the First Appellate Court and remand the matter for fresh hearing by the learned trial Judge after framing issues as indicated above. For this purpose, if necessary, the learned trial Judge will take additional evidence and decide the suit once for all. We do not approve of the direction given by the First Appellate Court that the plaintiffs should ask for partition by amendment. It is for the parties which relief they will ask for and in which manner, and it is not for the court to give any advice. Therefore direction given by the Appellate Court regarding amendment of plaint seeking partition and other reliefs are set aside and quashed. Let the suit be heard out in the above direction within a period of three months from the date of receipt of the records.” The additional issues required to be framed by the Trial Court are whether Gulab Chand was original owner or not and whether Gulab Chand had sons other than Kisan Chand and Jai Chand. Let the suit be heard out in the above direction within a period of three months from the date of receipt of the records.” The additional issues required to be framed by the Trial Court are whether Gulab Chand was original owner or not and whether Gulab Chand had sons other than Kisan Chand and Jai Chand. Even though the suit was directed to be heard and disposed of within three months from the date of receipt of records the plaintiffs filed an application for amendment of the plaint as late as on 20th March, 2011. The plaintiffs sought to incorporate by amendment of the plaint, the following prayer:- “In the alternative A decree against the defendants declaring the plaintiffs and the defendants to be the rightful recorded owner of the plaint schedule property and every part thereof jointly and after such declaration a decree declaring the shares of the plaintiffs in respect of the suit properties, partition in terms of the said shares by appointment of a commissioner etc. and for recovery of possession of the shares of the plaintiffs from the defendants.” The amendment was sought on inter alia the contention that by framing the question whether Gulab Chand was the original owner of the suit properties or not, a new direction had been given to the entire suit. The proposed amendment was opposed by the defendant no.1 and the defendant nos.7 to 10 by filing their written objections. The application for amendment was rejected by the Trial Court by the impugned order dated 14th June, 2011. The operative part of the impugned order is set out herein below for convenience:- “Perused the petn., W.P., Plaint, Order of the Hon’ble High Court passed in FMAT 005/08 dt. 22.6.09. Consd. I consider that submission of the Ld. Advocate for the defdt is justified. Hon’ble High Court has remanded this suit on restricted/limited purpose for fresh hearing but no liberty to file amendment was given. If the amendment is allowed then the defdt will have to be given liberty to file a.w.s. and as such new odd issues might have to be framed which is not spirit of the direction of the Hon’ble Court. Hence, prayer for amendment vide petn. u/O. 6, R.17 C.P.C, 7.1.11 is rejected on contest but without cost. Fix 25/07/11 for evidence.” Ms. Hence, prayer for amendment vide petn. u/O. 6, R.17 C.P.C, 7.1.11 is rejected on contest but without cost. Fix 25/07/11 for evidence.” Ms. Anjili Nag, learned advocate appearing on behalf of the petitioner argued that the learned court below illegally assumed that the trial court could not consider any application for amendment in the absence of any order of the High Court allowing amendment. Ms. Nag argued that even if the remand was limited as contended by the concerned defendants, it could not be said that the power of the trial court to allow amendment had been curtailed by the High Court. Ms. Nag submitted that the proposed amendment for addition of a prayer, necessitated by the framing of the additional issue of whether Gulab Chand was the original owner, would not change the nature and character of the suit. Ms. Nag argued that the application for amendment had been filed before commencement of evidence. There was thus no reason to refuse the prayer for amendment. The proposed amendments were necessary to settle all disputes between the parties, once and for all and to prevent multiplicity of legal proceedings. Mr. Prasanth, learned advocate appearing on behalf of the opposite parties submitted that the learned court below had rightly rejected the application for amendment, the order of remand being a restricted one, Mr. Prasanth referred to Order 41 Rule 25 of the Code of Civil Procedure set out hereinbelow:- “25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time.” Mr. Prasanth argued that the remand which was under order 41 rule 25 was restricted to framing of the additional issues as formulated in the judgement and order dated 22nd June, 2009 of the Hon’ble Division Bench. If the amendments were to be allowed the defendants would have to be given opportunity to file their additional written statement opening the avenue for raising of new issues. Mr. Prasanth argued that in view of the time-bound direction on the Trial Court to hear and adjudicate the suit, the application for amendment was hopelessly belated. Mr. Prasanth argued that the trial of the suit had already commenced and the suit had even been decreed. The court was now required to re-adjudicate the additional issues on the basis of the materials already on record, if necessary, by taking further evidence. It could not, therefore, be said that trial had not commenced. Once trial commences there are restrictions on amendment. Reference was made to Order 6 Rule 17, set out hereinbelow for convenience:- “17. Amendment of pleadings.- The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” Mr. Prasanth pointed out that there was not a whisper in the amendment application as to why the prayer for amendment could not be made earlier. The amended application was liable to be dismissed on that ground as well. Mr. Prasanth finally argued that the amendment proposed would change the nature and character of the suit. This Court is unable to accept Ms. Nag’s submission that trial of the suit had not commenced and as such it was open to the plaintiffs to amend the pleadings so that the disputes could be settled once and for all. The trial of the suit had not only commenced but also been concluded. There were appeals and further appeals. This Court is unable to accept Ms. Nag’s submission that trial of the suit had not commenced and as such it was open to the plaintiffs to amend the pleadings so that the disputes could be settled once and for all. The trial of the suit had not only commenced but also been concluded. There were appeals and further appeals. The Division Bench of this Court set aside the decree of the Trial Court and remanded the suit for adjudication after framing the issues as indicated in the judgement and order of the Division Bench. As rightly argued by Mr. Prasanth, the remand was a restricted remand and there was a time frame given by the Division Bench of this Court for conclusion of the trial. In terms of the judgement of the Division Bench the issues were to be adjudicated on the basis of the evidence already on record, if necessary by taking additional evidence. It cannot therefore be argued that the trial had not commenced. Moreover, there was a time-frame for conclusion of the suit. In the aforesaid circumstances amendment could only be allowed if the Court arrived at the conclusion that the party could not have raised the matter sought to be introduced by amendment, before commencement of the trial, in spite of due diligence. As rightly pointed out by Mr. Prasanth there was not a whisper in the amendment application as to by the prayer for amendment could not be made earlier. The only ground for amendment appears to be the framing of additional issues by the Division Bench of this Court. Issues are framed on the basis of the pleadings in the plaint and the written statement. The framing of an additional issue having regard to the pleadings already in existence cannot be ground for amendment. Even otherwise the Division Bench remanded the suit for adjudication of the issues indicated in the judgement and order of the Division Bench. Issues are framed on the basis of the pleadings in the plaint and the written statement. The framing of an additional issue having regard to the pleadings already in existence cannot be ground for amendment. Even otherwise the Division Bench remanded the suit for adjudication of the issues indicated in the judgement and order of the Division Bench. Even though the Division Bench did not expressly debar the Trial Court from framing any new issues, other than the issues indicated in the judgement of the Division Bench and the issues that had earlier been framed by the Trial Court, allowing of the amendment at this belated stage, which would necessarily result in framing of additional issues, would not be expedient having regard to the spirit and tenor of the judgement and order of the Division Bench of this Court, which has assumed finally. The Trial Court rightly rejected the application for amendment. The order impugned does not call for interference. This application is therefore dismissed.