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2011 DIGILAW 1538 (CAL)

Ratan Fadikar v. Rabin Samanta

2011-12-21

DIPANKAR DATTA

body2011
JUDGMENT : - 1. The petitioner in this revisional application under Article 227 of the Constitution is the defendant in a suit for declaration and permanent injunction, pending on the file of the learned Civil Judge (Junior Division), 2nd Court, Howrah. The suit was instituted on March 12, 2007 by Sri Dwija Swaran Dutta (since deceased) (hereafter Dwija Babu) praying for a decree declaring that a purported sale deed dated March 15, 2004, executed by him in favour of the defendant/petitioner (hereafter the defendant) is void, illegal, inoperative and not binding, being a product of fraud, misrepresentation and undue influence, and for a decree of permanent injunction restraining the defendant from creating disturbance in his peaceful possession of the suit property. 2. Dwija Babu passed away on March 20, 2007. After his death, his legal representative has been brought on record by substitution, being the opposite party herein (hereafter the plaintiff), who is prosecuting the suit. He claims that he is the executor/legatee of a will of Dwija Babu. 3. On service of summons, the defendant entered appearance and filed his written statement on February 29, 2008. 4. Recording of evidence of witness on behalf of the plaintiff was in progress before the trial Court. At this stage, the defendant filed an application under Order 6 Rule 17, Code of Civil Procedure (hereafter the Code) on May 20, 2009 for incorporating amendment in his written statement, whereby he intended to set up a counter-claim with prayers for decree (i) declaring that he is the absolute owner of the suit property and that the substituted plaintiff has no right, title and interest in respect thereof, (ii) for eviction of the substituted plaintiff, (iii) damages and (iv) costs. According to him, the written statement was drafted in hot haste and through oversight certain facts which ought to have been mentioned there were not mentioned. It was only during a consultation process that the omission was noticed, necessitating the prayer for amendment. 5. Sometime thereafter, on February 17, 2010, the plaintiff also filed an application under Order 6 Rule 17 of the Code praying for amendment of the plaint. 6. The learned Judge by an order dated April 1, 2010 allowed both the applications. 7. The defendant did not challenge the order allowing amendment of plaint. 5. Sometime thereafter, on February 17, 2010, the plaintiff also filed an application under Order 6 Rule 17 of the Code praying for amendment of the plaint. 6. The learned Judge by an order dated April 1, 2010 allowed both the applications. 7. The defendant did not challenge the order allowing amendment of plaint. However, the plaintiff challenged the order allowing amendment of written statement in a revisional application before this Court. By order dated November 29, 2010, Hon’ble Jyotirmoy Bhattacharya, J. allowed the revisional application by setting aside the order under challenge. A finding was recorded that the defendant had furnished no explanation why he could not apply for amendment of written statement before commencement of trial of the suit. It was further observed that the learned Judge of the trial Court had “allowed the application for amendment of written statement without recording his satisfaction about the reasons for such delay”. His Lordship expressed that “in view of the proviso added to Order 6 Rule 17 of the Code of Civil Procedure, even a meritorious application cannot be allowed unless the court is satisfied that in spite of due diligence the defendant could not have raised the said matter before commencement of trial”. Liberty was reserved to the defendant to file a supplementary affidavit disclosing the reason that prevented him from filing the application for amendment of the written statement prior to commencement of trial of the suit. The learned Judge of the trial Court was directed to reconsider the application of the defendant in the light of the observations made in the order. 8. The defendant filed a supplementary affidavit before the trial Court seeking to explain the reason as to why the application under Order 6 Rule 17 of the Code could not be filed earlier. The explanation is pleaded in paragraphs 6 & 7, which read as under: “6. That the defendant submits that before commencement of trial the defendant was advised by one other Lawyer and subsequently the defendant appointed another Lawyer just before commencement of trial and at the time of commencement of the trial the defendant could not disclose such matter before the Ld. That the defendant submits that before commencement of trial the defendant was advised by one other Lawyer and subsequently the defendant appointed another Lawyer just before commencement of trial and at the time of commencement of the trial the defendant could not disclose such matter before the Ld. Court and after commencement of trial the substituted plaintiff adduced evidence in the suit and he was cross-examined in part and at the time of cross examine he substituted plaintiff Rabin Samanta answered in cross examination that “Dwija Babu used to discuss with me very little matter. He did not discuss with me abut his line of action. Not even he stated me about his taking loan from others. I did not go through the W.S. filed by the defendant. I have the knowledge, Dwija Babu took draft of money twice from the defendant. I asked them Dwija babu, which is the reason of taking such amount.” From the above statement at the time of cross examination it came to the knowledge of the defendant that since the substituted plaintiff was a licensee under the said Dwija Saran Dutta when Dwija babu never discussed any matter as to his property with the present substituted plaintiff in the conclusion that the present substituted plaintiff was allowed to stay in a part of the suit property under him as licensee and as such while the original Written Statement was filed such statement was not within the knowledge which was disclosed by this defendant at the time of cross examination and as such initially at the time of filing Written Statement as well as at the time of cross examination of the plaintiff, this defendant could not disclose the matter as stated in the amendment of the Written Statement and as such at the time of cross examination, defendant could not state the fact as stated in the application for Written Statement hereof inspite of due diligence which came to the knowledge of this defendant after commencement of trial. 7. 7. That the defendant had no knowledge of such fact at the time of commencement of trial and only it came to the knowledge of the defendant at the time of cross examination of Witness of PW which was disclosed by this defendant at the time of said cross examination and this defendant came to know such fact after due diligence after the examination of the trial of this suit.” 9. The learned Judge on fresh consideration of the application under Order 6 Rule 17 of the Code, rejected the same by order dated January 11, 2011. This order has been impugned herein. 10. Mr. Roy Chowdhury, learned senior advocate appearing for the defendant contended that the learned Judge of the trial Court adopted a very technical approach while rejecting the application under Order 6 Rule 17 of the Code. Referring to the decision reported in (2006) 6 SCC 498 (Baldev Singh and ors. v. Manohar Singh and anr.), it was contended that the Courts ought to be more liberal in allowing amendment of written statement than that of a plaint and that the question of prejudice is less likely to operate with same rigour in the former than in the latter case. This principle of law, according to him, was overlooked by the learned Judge while passing the impugned order. 11. Reliance was also placed by Mr. Roy Chowdhury on the decisions reported in AIR 1987 SC 1395 (Mahendra Kumar and anr. v. State of Madhaya Pradesh and Ors.), AIR 1997 SC 3985 [Smt. Shanti Rani Das Dewanjee v. Dinesh Chandra Dey (dead) by LRs.] and 2004 (1) CHN 6 (Seema Dasgupta v. Gopal Banerjee) to contend that the learned Judge erroneously held that the counter-claim that the petitioner sought to raise by amending his written statement is not maintainable, being barred by time. 12. Finally, it was contended that Courts have always been inclined to avoid multiplicity of proceedings and having regard to the fact that the amendment as prayed for by the defendant would result in the defendant not being driven to institute a fresh suit and would at the same time enable the Court to express its views on the rival claims and thereby decide the contentious issues in one proceeding, the order impugned deserves to be set aside in the interest of justice. 13. Mr. Mukherjee, learned advocate for the plaintiff, opposed the application. 13. Mr. Mukherjee, learned advocate for the plaintiff, opposed the application. He contended that the learned Judge did not exercise discretion erroneously while rejecting the application under Order 6 Rule 17 of the Code and, therefore, this Court in exercise of revisional jurisdiction under Article 227 of the Constitution ought not to interfere. 14. On merits, it was contended that the defendant had failed to satisfy the learned Judge that he had been pursuing the matter diligently and that despite the same, the amendment that he proposed to introduce could not have been raised earlier. Referring to the proviso inserted in Order 6 Rule 17 of the Code, Mr. Mukherjee urged that the provision is to be considered mandatory and that liberal view that was taken earlier by the Courts in respect of a prayer for amendment of pleadings is no longer available and it is only open fulfillment of the condition mentioned in the proviso that the Court is empowered to allow a prayer for amendment. Reference in this connection was made to the decision of the Supreme Court reported in (2009) 2 SCC 409 (Vidyabai and ors. V. Padmalatha and anr.) and the decisions of the Punjab and Haryana High Court reported in 2009 (4) ICC 659 (K.B. Sharma v. Keerti Karan Dharni) and 2010 (2) ICC 576 (Khushiram v. Murli Monohar Thatheran Panchayati Mandir and Dharamsala Society). 15. Taking cue from the aforesaid decisions, Mr. Mukherjee contended that the proviso inserted in Rule 17 of Order 6 of the Code has the effect of curtailing the wide power and unfettered discretion that was originally conferred on Courts by the said rule and the contention raised by his adversary to the effect that multiplicity of proceedings would be avoided if the amendments were allowed, is no longer a relevant consideration. 16. Before concluding, it was also contended that if amendments as prayed for by the defendant were allowed, that would give rise to inconsistent pleas in the written statement and, therefore, no illegality was committed in rejecting his application. 17. I have heard learned advocates for the parties. The learned Judge of the trial Court appears to have rejected the prayer for setting up a counterclaim, on amendment of the written statement originally filed, basically on two grounds, viz. 17. I have heard learned advocates for the parties. The learned Judge of the trial Court appears to have rejected the prayer for setting up a counterclaim, on amendment of the written statement originally filed, basically on two grounds, viz. (i) the cause of action for raising the counter-claim arose after institution of the suit but before the defendant delivered his defence and, therefore, the bar in Order 8 Rule 6A would be applicable; and (ii) the cause shown for the delay in praying for amendment is not sufficient. 18. The question that requires an answer on this revisional application is whether the order impugned merits interference or not on the limited grounds based whereon judicial review of an order passed by a subordinate Court could be attracted. 19. The first ground referred to above, based whereon the application under Order 6 Rule 17 of the Code was rejected, is in the teeth of the decisions in Mahendra Kumar (supra) and Shanti Rani Das Deewanji (supra). Paragraph 15 of the decision in Mahendra Kumar (supra) being relevant is quoted hereunder: “15. The next point that remains to be considered is whether R. 6A(1) of O. VIII, Civil P.C. bars the filing of a counter-claim after the filing of a written statement. This point need not detain us long, for R. 6A(1) does not, on the face of it, bar the filing of a counter claim by the defendant after he had filed the written statement. What is laid down under R. 6A(1) is that a counter-claim can be filed, provided the cause of action had accrued to the defendant before the defendant had delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not. The High Court, in our opinion, has misread and misunderstood the provision of R. 6A(1) in holding that as the appellants had filed the counter claim after the filing of the written statement, the counter claim was not maintainable. The finding of the High Court does not get any support from R. 6A(1), Civil P.C. As the cause of action for the counter claim had arisen before the filing of the written statement, the counter claim was, therefore quite maintainable. The finding of the High Court does not get any support from R. 6A(1), Civil P.C. As the cause of action for the counter claim had arisen before the filing of the written statement, the counter claim was, therefore quite maintainable. Under Art. 113, Limitation Act, 1963, the period of limitation of three years from the date the right to sue accrues, has been provided for any suit for which no period of limitation is provided elsewhere in the Schedule. It is not disputed that a counter claim, which is treated as a suit under S. 3(2)(b), Limitation Act, had been filed by the appellants within three years from the date of accrual to them of the right to sue. The teamed District Judge and the High Court were wrong in dismissing the counter claim.” 20. Considering the aforesaid decision, it was held in Shanti Rani Das 21. The view of the learned Judge of the trial Court that once the written statement was filed by the defendant no counter-claim could be set up by the defendant in respect of a cause of action that arose prior to filing of written statement by him is patently erroneous. 22. Regarding the second ground on which the learned Judge felt disinclined to exercise discretion in favour of the defendant, it appears that the same thought process regarding accrual of cause of action prior to filing of the written statement by the defendant and his statement in the schedule of the amendment that cause of action arose on and from March 20, 2007 and, therefore, the delay in approaching the Court was not properly explained, have primarily influenced her in rejecting the prayer. This part of the reasoning appears to be indefensible, for, if the defendant were to plead that his cause of action to set up the counter-claim accrued on the date he derived knowledge for the first time in course of cross-examination of the plaintiff that he was a licensee under Dwija Babu, his counter-claim would not lie and he would have been left to institute a fresh suit. What escaped the notice of the learned Judge was that the knowledge that the defendant derived on the day the plaintiff was cross-examined would relate back to the days when Dwija Babu was alive and since he passed away on March 20, 2007, it was pleaded that the cause of action to set up counterclaim accrued on and from that date. 23. Based on the above, the order impugned merits to be set aside. However, one fundamental aspect emerging from the facts on record and appearing to this Court to be clinching in nature needs to be discussed now in the light of the Court’s duty to do justice according to law. 24. The law in respect of amendment of pleadings has undergone a sea change with the advent of the proviso in Rule 17 of Order 6. Vidyabai (supra) is a decision of the Supreme Court of recent origin dealing with the changed law. It has been held that Order 6 Rule 17 is couched in mandatory form and unless the jurisdictional fact, as envisaged in the proviso thereto is found to be existing, the Court will have no jurisdiction to allow amendment of plaint. That the same consideration would apply in respect of a written statement, since it is also a pleading, does not admit of any doubt. 25. The endeavour of the Courts has always been to sub-serve the ultimate cause of justice. Having regard to exploding dockets, dislike for multiplicity of proceedings is well discernible. Courts have been leaning in favour of such interpretation of the laws that would prevent multiplicity of proceedings as opposed to the one, which has the potential of generating it. Bearing in mind that dispensation of justice is the ultimate goal, can the Court in exercise of discretionary power overstep the statutory limitation? Exercise of discretionary power contrary to statutory interdict and in a manner that borders on arbitrariness has always been frowned upon. While indubitably factors like serious injustice or irreparable loss ought to exercise the Court’s consideration, yet, the predominant consideration ought to be to give effect to the law, howsoever harshly it might operate against a party. 26. It is true that allowing the defendant to set up a counter-claim would save time, effort and costs. Had trial of the suit not commenced, the Court would not have hesitated in allowing the amendment prayed for by the defendant. 26. It is true that allowing the defendant to set up a counter-claim would save time, effort and costs. Had trial of the suit not commenced, the Court would not have hesitated in allowing the amendment prayed for by the defendant. But the difficulty is created by the proviso in terms whereof none can claim amendment after commencement of trial on the mere asking. This Court respectfully agrees with the view expressed by Hon’ble Jyotirmoy Bhattacharya, J. in the first round of litigation between the parties here that howsoever meritorious an application for amendment of pleadings may be, it cannot be allowed without the Court being satisfied that despite exercise of due diligence, the party seeking amendment could not have approached it earlier. It is on this point of ‘exercise of due diligence’ that the defendant appears to have faltered. 27. It was the defendant’s plea that the fact that the plaintiff was a licensee under Dwija Babu came to light during cross-examination necessitating a counter-claim to be set up in respect of the defendant’s claim of ownership of the suit property and seeking the plaintiff’s eviction therefrom. Paragraph 6 of the supplementary affidavit, extracted supra, has been referred to by Mr. Roy Chowdhury in support of such assertion. From the testimony of the plaintiff to the effect that Dwija Babu did not discuss any matter with the former, the defendant formed the view that the plaintiff was allowed to stay in a part of the suit property as a licensee under Dwija Babu. According to the learned Judge of the trial Court, she “could not find out any relevant leading questions regarding the exact status of the pltff in the suit ppty was put forward to the pltff at all”. This observation of the learned Judge is not ostensibly linked to the reasons that dissuaded her from exercising discretion in favour of the defendant. The question here is whether the Court can, for recording a satisfaction that the defendant had not sufficiently explained his belated approach, consider the same. 28. Power of judicial superintendence exercised by the High Court under Article 227 of the Constitution, while examining an order passed by a subordinate Court for a decision as to whether it ought to be sustained or not, is not confined or restricted to a scrutiny of the reason(s) assigned in the order under challenge. 28. Power of judicial superintendence exercised by the High Court under Article 227 of the Constitution, while examining an order passed by a subordinate Court for a decision as to whether it ought to be sustained or not, is not confined or restricted to a scrutiny of the reason(s) assigned in the order under challenge. The High Court, upon consideration of the materials before the subordinate Court or having regard to observations on factual aspects contained in the order, which are not shown to be inconsistent with the materials on record, would be perfectly competent, without agreeing or disagreeing with the reason(s) set forth in the impugned order, to uphold or upset it by justifying its interference/non-interference, as the case may be, on the basis of reasons provided by the learned Judge in support of the conclusion reached after hearing the parties. In appropriate cases, such a course of action would also aid the High Court in avoiding a remand on the principle that the Court may itself pass an appropriate order that the subordinate Court, on the materials before it, ought to have passed. 29. That the learned Judge was totally in error in making the observing she did, as extracted in paragraph 7 supra, has not been brought to the notice of the Court. Reading of paragraphs 6 and 7 of the supplementary affidavit of the defendant also do not lead one to the conclusion that the learned Judge is at fault. Since the plaintiff was not asked any question regarding his status or his authority to reside at the suit property and he not having said that he was a licensee under Dwija Babu, no person of reasonable prudence could come to the conclusion that his testimony enlightened the defendant giving to reason to him to set up the counter-claim by amending his written statement. Merely because Dwija Babu scarcely discussed any matter with the plaintiff in respect of the former’s line of action, as deposed by the plaintiff, is hardly convincing to rule in favour of the defendant. The explanation that an applicant furnishes for a belated prayer for amendment of pleadings to be allowed after trial has commenced must be convincing enough for the learned Judge to obtain a ruling in his favour. The explanation that an applicant furnishes for a belated prayer for amendment of pleadings to be allowed after trial has commenced must be convincing enough for the learned Judge to obtain a ruling in his favour. This Court is afraid, the defendant cannot be said to have furnished even a plausible explanation for the learned Judge to allow his prayer. 30. The Court is inclined to agree with Mr. Mukherjee, that allowing the prayer for amendment of pleadings, made by the defendant, after commencement of trial, only on the ground that such an order would prevent multiplicity of proceedings cannot be made if the condition precedent is not satisfied i.e. the Court must come to a conclusion that in spite of due diligence the applicant could not have raised the matter before commencement of trial. 31. Now comes the question as to whether the defendant would suffer irreparable loss, injury or prejudice if the order impugned is not touched. In the further view of the Court, refusal to entertain the counter-claim of the defendant would not prejudice him at all since notwithstanding such refusal, he is always at liberty to institute a suit based on the cause of action on which he intended to set up the counter-claim. 32. In the result, the order impugned is upheld not for reasons assigned therein but for the reasons recorded above. The application under Order 6 Rule 17 filed by the defendant before the trial Court stands dismissed. 33. The suit shall proceed in accordance with law henceforth and the learned Judge may to expedite her decision thereon. Photostat certified copy of this judgment and order may be furnished to the applicant at an early date. Deewanji (supra) that the application under Order 8 Rule 6A of the Code was not ex-facie barred after filing of the written statement.