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2011 DIGILAW 314 (GAU)

Akbar Ali v. Moslem Uddin Mandal

2011-04-07

ANIMA HAZARIKA

body2011
JUDGMENT Smt. Anima Hazarika, J. 1. The Petitioners herein are the Defendants on the file of the learned Munsiff, Bilasipara who have sought for an amendment of the written statement being Misc. (J) Case No. 48/2010 arising out of Title Suit No. 29/2009. The learned trial court vide impugned order dated 17.8.2010 rejected the prayer for amendment of the written statement holding that there is lack of due diligence on the part of the Defendants in seeking the amendment, which, if allowed, would change the character of the suit, more so, when there is an admission in favour of the Plaintiffs in the written statement filed already. The impugned order dated 17.8.2010 is now under challenge before this Court in exercise of power under article 227 of the Constitution of India. 2. Now the question arises as to whether the approach adopted by the trial court can be stated to have suffered from any infirmity so as to call for interference by this Court in a petition under article 227 of the Constitution of India. 3. In order to answer the question as indicated above, the court is required to go through the facts which is summarized hereinbelow: The opposite parties herein are the Plaintiffs in Title Suit No. 29/2009 before the learned Munsiff, Bilasipara who have sought the following reliefs, viz. (a) A decree declaring the right, title and interest of the Plaintiffs in the suit land, (b) A decree for the cancellation of sale deed Nos. 2871/2008 and 2872/2008 dated 20.9.2008, (c) A decree declaring the sale deed Nos. 2871/2008 and 2872/2008 dated 20.9.2008 as illegal, forged and, hence, void, (d) A decree for eviction of the Defendant Nos. 1 and 2 from the suit land and for Khas possession, (e) A decree for permanent injunction restraining the Defendant Nos. 1 and 2 to record their names into mutation or alienate the suit land to any person or agents till disposal of the suit, (f) A decree for cost to the Plaintiffs, (g) A decree for any other reliefs as the court deemed fit and proper with equity and good conscience. 4. The Defendants on receipts of summons had entered their appearance and filed their written statements on 7.7.2009. On the pleadings of the parties the learned trial court framed the issues. 4. The Defendants on receipts of summons had entered their appearance and filed their written statements on 7.7.2009. On the pleadings of the parties the learned trial court framed the issues. Thereafter the Plaintiffs have submitted their evidence on affidavit and the Defendants were called upon to cross-examine the Plaintiff's witness. At this stage the Defendants sought for an amendment of the written statement on 8.6.2010 which is reproduced below - (1) That, due to the misunderstanding of instructions taken by the engaged advocate some error has been committed in writing the written statement. That these are inadvertent mistake happened in the written statement. That these mistake could not be discovered at the earliest stage though the Defendant had due diligence in conducting the Defendant side case. (2) That in para No. 1 the following sentences are to be added: That the suit have been based on the facts of mutation and in the relief portion the Plaintiff in para No. 18(e) prays for restraining the Defendant Nos. 1 and, 2 to record their names or mutated their names which is clearly barred by law under Section 154 of Assam Land and Revenue Regulation Act, 1886 as amended up-to-date. (3) That after para No. 2 the following sentences are to be added: - That the Defendants have purchased a plot of land measuring -1 Bigha, 9 Lessas, vide registered Sale Deed No. 2865 of 1970 and just after this sale-deed the Defendants have been delivered possession and they have built their home thereon in the year of 1970. That the Defendants father have also purchased a plot of land measuring 2 bighas, 9 lessas contiguous to this plot of land vide Registered Sale Deed No. 515 of 1977. That these two pieces of land made one plot and, thus, became an area -3 bighas, 18 lessas which have been continuously, openly and without any interruption from any corner have been possessing by the Defendants since 1970 and 1977 till to the present time. That the boundary of this plot of land given in the sale deeds and in the actual field are correct there is no any suspicion in this regard in the physical possession. That the Plaintiffs knew this fact very well that the Defendants have every right, title, interest upon the suit land. That the boundary of this plot of land given in the sale deeds and in the actual field are correct there is no any suspicion in this regard in the physical possession. That the Plaintiffs knew this fact very well that the Defendants have every right, title, interest upon the suit land. That the Plaintiffs claim are absolutely false and they have no right, title, interest upon the suit land. (4) That the following stanza and paras will be deleted from the written statement, i.e., para No. 3 of the written statement and also from the para No. 5 in the 6th line the word "but" to the last 'that way" of this para and one sentence will be added in this para No. 5 in the last line. That the sentence is 'the averments of paras 3 and 4 of the plaint are denied by Defendants. 5. The amendment as sought for by the Defendants was objected to by the Plaintiffs contending that if amendment is allowed it would change the character of the suit which is not permissible under the law. The trial court took up the matter on 17.8.2010 and after threadbare discussion rejected the amendment which is the subject-matter in this revision petition. 6. Heard Mr. H.R.A. Choudhury, learned senior counsel assisted by Mrs. R. Choudhury, Learned Counsel appearing for the Petitioners. Also heard Mr. S Ali, Learned Counsel appearing for the opposite parties. 7. Opening the argument on behalf of the Petitioners, Mr. Choudhury, learned senior counsel would contend that the court has the power at any stage of the proceedings to allow either party to alter or amend his pleadings in such manner" and on such terms as may be just, which may be necessary for the purpose of determining the real questions in controversy between the parties, however, there is a rider 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. The commencement of the trial has not yet began and due to misunderstanding of instructions taken by the engaged counsel, some error has been committed in writing the written statement, which are inadvertent mistake and could not be discovered earlier though there is due diligence in conducting the case. The commencement of the trial has not yet began and due to misunderstanding of instructions taken by the engaged counsel, some error has been committed in writing the written statement, which are inadvertent mistake and could not be discovered earlier though there is due diligence in conducting the case. Learned Counsel has further contended that the amendment, if allowed, would not cause any prejudice to the Plaintiffs. 8. In support of his contentions, the learned senior counsel has relied upon the following decisions: (1) Baldev Singh and Ors. v. Manohar Singh and Anr., (2006) 6 SCC 498 . (2) Usha Balasaheb Swami B. Ors. v. Kiran Appaso Swami and Ors., (2007) 5 SCC 602 . (3) Ajendraprasadji N. Pande v. Swami Keshavprakashdashi N., (2007) All SCR 734. 9. Refuting the argument advanced by the counsel representing the Petitioners Mr. Ali, Learned Counsel appearing for the opposite parties has submitted that the written statement filed earlier, and the amendment now sought for, would disclose that amendment if allowed, would change the character of the suit and it would negate the plea taken by the Defendants in their written statement which contains an admission in favour of the Plaintiffs and, therefore, contended that the Defendants cannot be allowed to resile from their earlier written statements which would prejudice the case of the Plaintiffs. 10. Mr. Ali has further contended that the application for amendment as sought for would disclose that there is lack of due diligence in seeking the amendment and the averments made in the application under order VI, Rule 17 of the Code of Civil Procedure ('the Code of Civil Procedure') would disclose that the written statement was filed on 7.7.2009 and the amendment of written statement as sought for was filed on 8.6.2010 after about eleven months after commencement of trial and that too, due to misunderstanding, of instructions taken by the engaged advocate, which cannot be allowed when there is no due diligence in seeking the amendment, as observed by the learned trial court. There is no jurisdictional error in rejecting the prayer for amendment of written statement and, therefore, the impugned order is not liable to be interfered with in the facts and circumstances of the case, submitted Mr. Ali. 11. In support of his submissions, Mr. Ali has placed reliance to the following decisions: (1) Vidyabai and Ors. There is no jurisdictional error in rejecting the prayer for amendment of written statement and, therefore, the impugned order is not liable to be interfered with in the facts and circumstances of the case, submitted Mr. Ali. 11. In support of his submissions, Mr. Ali has placed reliance to the following decisions: (1) Vidyabai and Ors. v. Padmalatha and Anr., (2009) 2 SCC 409 . (2) Anil Chandra Nath v. Aliul Islam and Ors., 2009 (1) GLT 5171 12. Considered the submissions made by the contesting parties. Perused the impugned order along with the pleadings of the parties including the plaint, written statement and the application seeking amendment of the written statement. The amendment of written statement as sought for in paragraph 2 relates to relief seeking permanent injunction restraining the Defendant Nos. 1 and 2 to record "their names into mutation" or alienate the suit land to any person or agents till disposal of the suit, whereas Section 154 of the Assam Land and Revenue Regulation, 1886 puts a bar to take cognizance of civil court in respect of correction/mutation of record of rights. The amendment so sought for is a pure question of law and the Defendants would not be precluded from raising the objection in regard to the said relief and, hence, the amendment of written statement relating to paragraph 2 fails and answered accordingly. 13. I have also carefully perused the paragraph 3 of the amendment petition. Perusal of the same would disclose that the amendment as sought for has been averred in paragraph 3 of the written statement to the effect that the Plaintiff No. 1 and the son of Plaintiff No. 2 became joint pattadars and owners of the land in question and thereafter, both of them have consented to have mutation against the said plot of land, whereas in the application seeking amendment has stated that the Defendants have every right, title, interest upon the suit land and the claim of the Plaintiffs are absolutely false and they have no right, title, interest upon the suit land. The amendment as sought for could not be allowed since there is admission on the part of the Defendants in the written statement and they cannot be allowed to resile from the earlier averment and, hence, answered in negative and accordingly, paragraph 4 of the amendment application is also turned down. 14. The amendment as sought for could not be allowed since there is admission on the part of the Defendants in the written statement and they cannot be allowed to resile from the earlier averment and, hence, answered in negative and accordingly, paragraph 4 of the amendment application is also turned down. 14. Admittedly order 6, Rule 17 of the Code of Civil Procedure has empowered the court, to allow amendment of the pleadings at any stage of the proceedings in order to determine the real questions in controversy between the parties with a rider 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 who sought for amendment could not have raised the same before the commencement of trial. A reading of the application seeking amendment of written statement would disclose lack of due diligence on the part of the Petitioners in seeking the amendment and there is no jurisdictional error in rejecting the prayer for amendment of written statement requiring interference in the facts and circumstances of the case. 15. In the case of Baldev Singh (supra), the Supreme Court has held that the amendment of plaint and amendment of written statement are not to be weighed in the same analogy. The Supreme Court has observed that adding a new ground of defence or substituting or altering a defence does not raise the same problem as adding, altering or substituting a new cause of action, holding that the court has a wide power to allow amendment of pleadings in such manner on such terms as it appears to court to be just and proper. But in the instant case, by amending the written statement Defendants cannot he allowed to resile from the earlier statement of admission made in favour of the Plaintiffs which, if allowed, would cause prejudice to the Plaintiffs, more so, when there is lack of due diligence in seeking the amendment of written statement. 16. But in the instant case, by amending the written statement Defendants cannot he allowed to resile from the earlier statement of admission made in favour of the Plaintiffs which, if allowed, would cause prejudice to the Plaintiffs, more so, when there is lack of due diligence in seeking the amendment of written statement. 16. The same is the case of Ushabalasaheb Swami (supra), wherein, while allowing the appeal and allowing the application for amendment of the written statement, the Supreme Court held, thus, "from a bare perusal of order 6, Rule 17, Code of Civil Procedure, it is clear that the court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties. The courts should be liberal in granting the payer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one". But in the instant case, as stated already, by amending the written statement, Defendants cannot be allowed to wriggle out of an admission already made in their written statement filed earlier, which otherwise cause prejudice to the Plaintiff's case, when there is lack of due diligence. 17. In the case of Ajendraprasadji (supra), the Supreme Court has turned down the amendment of pleadings referring different dates of the suit before the learned trial court and in the amendment application wherein no facts are pleaded nor any grounds are raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the Appellants holding that the case is covered by proviso to Rule17 of order 6 and, therefore, the relief deserves to be denied. While rejecting the prayer for amendment, the Supreme Court held that "....non-seeking of appropriate amendment at appropriate stage in the manner envisaged by law has disentitled the Appellants any relief. The amendment, in our view, also seeks to introduce a totally new and inconsistent case". While holding as, thus, the Supreme Court has also referred Baldev Singh's case (supra). While rejecting the prayer for amendment, the Supreme Court held that "....non-seeking of appropriate amendment at appropriate stage in the manner envisaged by law has disentitled the Appellants any relief. The amendment, in our view, also seeks to introduce a totally new and inconsistent case". While holding as, thus, the Supreme Court has also referred Baldev Singh's case (supra). In the instant case, the facts pleaded in the amendment application would show that there was misunderstanding of instructions taken by the engaged advocate and, therefore, some error has been committed in writing the written statement which has been made inadvertently and these mistakes could not be discovered at the earlier stage though the Defendant had due diligence in conducting the Defendant side case. The written statement was filed on 7.7.2009, thereafter issues were framed, documents were submitted and the Plaintiffs witnesses have submitted the evidence on affidavit and only when the date was fixed for cross-examination of the Plaintiff's evidence the amendment application was filed on 8.6.2010 and no explanation save and except the word 'misunderstanding' has been averred showing thereby that there was no due diligence in seeking the amendment and, hence, the case would go against the Petitioners. 18. In the case of Vidyabai (supra) referred to by Mr. Ali, Learned Counsel representing the opposite parties, the Supreme Court remanded the matter to decide whether documents could be allowed to be produced after commencement of trial when the amendment of written statement was not allowed. The case referred relates to specific performance of contract wherein amendment of written statement as well as production of additional documents were sought for after commencement of trial, when the date was fixed for cross-examination. The learned trial court rejected the prayer for amendment as well as production of additional documents. An appeal was preferred before the High Court against the order of rejection, whereupon High Court allowed documents to be filed while upholding the rejection of amendment of written statement. Challenging the said order Plaintiff filed special leave petition before the Supreme Court, allowing the appeal of the Plaintiff-appellant, the Supreme Court held as thus, Order 6, Rule 17, Code of Civil Procedure is couched in a mandatory form. Challenging the said order Plaintiff filed special leave petition before the Supreme Court, allowing the appeal of the Plaintiff-appellant, the Supreme Court held as thus, Order 6, Rule 17, Code of Civil Procedure is couched in a mandatory form. Unless the jurisdictional fact, as envisaged in the proviso to order 6, Rule17, Code of Civil Procedure is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of trial. From the order passed by the trial Judge, it is evident that the Respondents had not been able to fulfil the said precondition. 19. In the case of Anil Chandra Nath (supra), this Court held that in order to avail the benefit of order 6, Rule 17 of the Code of Civil Procedure the court should be satisfied that in spite of due diligence party could not introduce amendment before the commencement of trial which is a pre-condition and in absence of jurisdictional fact, as envisaged in the proviso to order 6, Rule 17 of the Code of Civil Procedure, court has no jurisdiction to allow amendment of pleadings which fully covers the instant case. 20. In view of the facts stated hereinabove the approach adopted by the leaned trial court cannot be stated to suffer from any infirmity so as to call for interference by this Court in a petition under article 227 of the Constitution of India. Consequently, this Court is not inclined to interfere with the order impugned in this revision petition. 21. In the result and for the reasons discussed hereinabove, the instant revision petition found to be devoid of any merit. Accordingly, the same is dismissed. No order as to costs. 22. As the Learned Counsel appearing for both the parties are present in the court, they are directed to appear before the learned trial court on 9.5.2011 to obtain necessary order(s). 23. Send down the lower court record forthwith. Petition dismissed.