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2011 DIGILAW 318 (GAU)

Mir Mohibul Hussain v. Kamruj Zaman

2011-04-07

ANIMA HAZARIKA

body2011
JUDGMENT Smti. Anima Hazarika, J. 1. The plaintiff in Title Suit No. 972 of 2006 on the file of the learned Munsiff No. 3 (Kamrup) at Guwahati has assailed the order dated 31.07.2008 passed in Misc. (J) Case No. 312 of 2007 arising out of Title Suit No. 972 of 2006 whereby and whereunder the learned trial Court dismissed the Misc. Case seeking amendment of the plaint 2. A brief facts are necessary to understand the case set forth in the pleadings for amendment of the plaint, objection thereto and the findings arrived at by the learned trial Court. The petitioner herein as plaintiff has brought a suit being Title Suit No. 972 of 2006 against the defendants in the Court of the learned Munsiff No. 3 (Kamrup) at Guwahati seeking the following reliefs: (i) Declaration that the plaintiff is a bonafide tenant of the defendants and the defendants cannot evict the plaintiff forcibly and illegally from his tenanted premises, described fully in the schedule below without following due procedure established by law; (ii) For permanent injunction, restraining the defendants, their servants, agents, workmen, associates, musclemen from causing any kind of threat, nuisance, annoyance, intimidation, in any manner and from disturbing the peaceful possession of the plaintiff, in respect of his tenanted premises described in the schedule below; (iii) For realization of Rs, 1,50,000/- (Rupees one lakh fifty thousand) only being the value of the goods taken away illegally by the defendants from the below schedule tenanted premises, if the defendants fail to return the same, during the pendency of this suit and/or if the police fails to recover the same from the defendants, during pendency of this suit and the plaintiff craves the leave of this Hon'ble Court to pay the requisite ad valorem Court fee for the same at the time of completion of trial of this suit before this Hon'ble Court; (iv) The costs of the suit. 3. Along with the plaint, an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as 'the Code') was filed being numbered as Misc. 3. Along with the plaint, an application under Order 39, Rules 1 and 2 of the Code of Civil Procedure (hereinafter referred to as 'the Code') was filed being numbered as Misc. (J) Case No. 505 of 2006 which came up for consideration on 08.11.2006 before the learned trial Court wherein after going through the averments made in the plaint, injunction petition alongwith the documents annexed thereto and upon hearing the counsel representing the petitioner/plaintiff directed the opposite parties/defendants to maintain status quo as on 08.11.2006 in respect of possession of the scheduled premises mentioned in the Misc. Case asking the opposite parties to show cause on 27.11.2006 as to why an injunction as prayed for should not be granted by the Court making it clear that failing to show cause the matter will be heard and decided in absence of the opposite parties. 4. On receipt of the summons the defendants have entered appearance by filing written statement denying the averments made in the plaint, except admitting the relationship of landlord and tenant but denied to have paid the rent since July 2006 and that ultimately the plaintiff left the suit premises in the month of November 2006 with a promise to clear the outstanding rent in due time leading one refrigerator, one generator, eight numbers of side fans, one xerox machine in the suit premises to which the defendants are willing to return to the plaintiff thereby prayed for dismissal of the suit. 5. The status quo order in respect of the tenanted premises was directed to maintain till 27.11.2006. However, thereafter, the plaintiff failed to pray for extension of the status quo and thus the status quo order lapses its force since there was no extension order and consequently thereupon another Misc. (J) Case No. 613 of 2006 in Title Suit No. 972 of 2006 was filed under Section 151 of the Code for effective implementation of the injunction order dated 08.11.2006 passed in Misc.(J) Case No. 505 of 2006 but no order was passed on the Misc. (J) Case No. 613 of 2006 in Title Suit No. 972 of 2006 was filed under Section 151 of the Code for effective implementation of the injunction order dated 08.11.2006 passed in Misc.(J) Case No. 505 of 2006 but no order was passed on the Misc. (J) Case No. 613 of 2006 since the plaintiff was forcibly evicted from the suit premises on 17.12.2006 by the defendants though the plaintiff filed complaint before the learned Chief Judicial Magistrate, Guwahati against the defendants/accused seeking a direction to the Officer-in-Charge to take necessary steps to register the case and investigate against the accused and punish them in accordance with law but it did not yield any result. 6. Consequently thereupon on being forcefully dispossessed from the suit premises, an application under Order 6, Rule 17 of the Code was filed being numbered as Misc. (J) Case No. 312 of 2007 seeking amendment of the plaint. Amendment sought for is quoted hereunder-- 2.1. At page 1 of the plaint in 6th line from the bottom after the word 'premises' the following words are required to be added:- "As well as for recovery of possession of the suit premises." 2.2. At page 7 of the plaint in between paras 12 and 13, a new para as 12-A is required to be added containing the following contents:- "12-A. That on 17.12.2006 during the pendency of this suit, the plaintiff has been dispossessed by the defendants from the suit premise regarding which the plaintiff has lodged F.I.R. with Officer-in-charge, Panbazar Police Station (hereinafter in short O.C. Panbazar P.S.) which he first refused to accept and the petitioner then had to approach the Superintendent of Police Guwahati, who on the body of the F.I.R. dated 17.12.2006 by his endorsement directed the O.C. Panbazar P.S. to look into the matter as per law and thereafter the same was received by the O.C. Panbazar P.S. at 5.30 p.m. on 17.12.2006 itself and was registered as Panbazar P.S. Case No. 433/2006 corresponding to GR. Case No. 6111/2006 under Sections 448/428/34 Indian Penal Code. The Plaintiff on 19.12.2006 has also preferred a petition under Section 151 of the Code of Civil Procedure 1908 praying for a direction to O.C. Panbazar P.S. to effectively enforce order dated 08.11.2006 passed in Misc. (J) Case No. 505/2006, which has been registered as Misc. Case No. 6111/2006 under Sections 448/428/34 Indian Penal Code. The Plaintiff on 19.12.2006 has also preferred a petition under Section 151 of the Code of Civil Procedure 1908 praying for a direction to O.C. Panbazar P.S. to effectively enforce order dated 08.11.2006 passed in Misc. (J) Case No. 505/2006, which has been registered as Misc. (J) Case No. 613/2006 which is still pending in this Hon'ble Court. The plaintiff also filed an application before the learned Chief Judicial Magistrate, Kamrup, Guwahati praying for a direction to O.C. Panbazar P.S. to take necessary action on the basis of the FIR dated 17.12.2006, which was forwarded by the Chief Judicial Magistrate to O.C. Panbazar PS with direction to register a case and to submit fact findings early and the same has also been tagged with earlier Panbazar P.S. Case No. 433/2006 which is still pending in the said P.S. for appropriate action. The plaintiff states that the articles and belongings; which were lying in the suit premises when the defendants forcefully and illegally took over the possession of the suit premises and dispossessed the plaintiff there from in the manner as aforesaid; are listed separately and annexed to the plaint as Annexure-1; the value of which is approximately Rs. 1,20,000/-(Rupees one lakh twenty thousand). The said articles and belongs of the plaintiff are still lying in the custody of the defendants who have refused to handover the same to the plaintiff and therefore this Hon'ble Court may be pleased to direct the defendants to return the same to the plaintiff. 2.3. At page 7 in para 13 of the plaint, the words, 'cannot evict' appearing in third line thereof, are required to be replaced by the following words:- have illegally dispossessed the plaintiff from the suit premises on 17.12.2006 during the pendency of this suit by taking the possession thereof, by forcibly and illegally breaking opening the locks put thereon by the plaintiff and thereby evicted 2.4. At page 8 in para 14 of the plaint in the first line after the word 'from' the words 'causing any kind of thereat, nuisance, annoyance, intimidation in any manner and from disturbing the peacefully possession of the plaintiff in respect of the tenanted premises' are required to be replaced by the following words:- from selling, alienating and/or disposing off in any manner whatsoever the suit premises 2.5. At page 8 in para 16 of the plaint after the date 04.11.2006' the following words and figures are required to be added:- and on 17.12.2006 when the defendants dispossessed the plaintiff from the suit premises by forcibly and illegally breaking opening the locks put thereon by the plaintiff' 2.6. At page 8 in para 17 of the plaint in the 2nd line after the word, 'injunction', the words "as well as for recovery of possession of the suit premises" are required to be added. 2.7. At page 9 in the prayer portion in para (i) of the plaint in the 3rd line thereof after the word 'defendants', the words "can not evict" are required to be replaced by the following words:- have illegally dispossessed the plaintiff from the suit premises on 17.12.2006 during the pendency of the suit by taking the possession thereof by forcibly and illegally breaking opening the locks put thereon by the plaintiff and thereby evicted 2.8. At page 9 in the prayer portion in para (ii) of the plaint in the 4th line after the word 'from' the words, "causing any kind of threat, nuisance, annoyance, intimidation, in any manner and from disturbing the peaceful possession of the plaintiff, in respect of his tenanted premises," are required to be replaced by the following words:- from selling, alienating and/or disposing off in any manner whatsoever the suit premises 2.9. At page 10 in the prayer portion in para (iii) of the plaint in the 6th line after the words, 'Premises and coma' the following words and figures are required to be added:- and so also for realization of Rs. 1,20,000/- (Rupees One lakh twenty thousand) being the value of the goods illegally taken by the defendants while dispossessing the plaintiff from the suit premises on 17.12.2006 and which are separately listed and annexed hereto as Annexure-1. 2.10. That accordingly the necessary changes in application under Order 39, Rules 1 and 2 may also be allowed." 7. 1,20,000/- (Rupees One lakh twenty thousand) being the value of the goods illegally taken by the defendants while dispossessing the plaintiff from the suit premises on 17.12.2006 and which are separately listed and annexed hereto as Annexure-1. 2.10. That accordingly the necessary changes in application under Order 39, Rules 1 and 2 may also be allowed." 7. Against the application filed under Order 6, Rule 17 of the Code by the plaintiff, the defendants submitted their objection by filing written argument contending inter alia raising the following points:- (a) In the suit the learned trial Court framed as many as five issues on the pleadings of the parties and the suit is fixed for evidence of the plaintiff's side which is a bar under the proviso of Order 6, Rule 17 of the Code. (b) The amendment petition has been filed after six months from the date of dispossession from the suit land without averring any cogent reason and without showing any due diligence as to why they could not file the amendment petition before commencement of trial. (c) The amendment sought for in paragraphs 2.1 to 2.10 of the amendment application, if allowed, would completely change the character and nature of the suit which cannot be allowed under Order 6, Rule 17 of the Code; (d) In view of new cause of action the plaintiff ought to have filed a fresh suit 8. The amendment as sought for by the plaintiff came up for consideration before the learned trial Court and the learned trial Court after hearing the parties and upon perusal of the pleadings of the amendment application vis-a-vis the written objection, quoting the provision of Order 6 Rule 17 of the Code vide order dated 31.07.2008 has held that "under Order 6, Rule 17 of CPC provides that Court may at any stage of the proceeding 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 inspite of due diligence, the party could not have raised the matters before the commencement of trial. In the instant suit defendants/opposite party have filed written statement, issues are framed and defendants have filed list of their witnesses. It appears that the trial has already commenced in this suit. Order 6, Rule 17 does not create any bar in allowing amendment application if the Court comes to the conclusion that inspite of due diligence the party could not have raised the matters before the commencement of the trial. On this context petitioners placed reliance on the cases Abdul Khalique V. Abdul Sattar and Ors., reported in 2007 (2) GLT 644 and Narendra singh Sengar V. Srimati Maltidevi and Ors., reported in AIR 1993 Madhya Pradesh 248 wherein it is observed: amendment may be allowed even after the trial has been commenced. However, the learned trial Court referring the dates of cause of action has observed that admittedly on 17.12.2006 the plaintiff was dispossessed from the suit premises and on the same day, i.e. on 17.12.2006 itself the plaintiff lodged an FIR with the Officer-in-Charge, Panbazar Police Station informing the incident which would reveal that the petitioner/ plaintiff had knowledge of the dispossession. On the other hand, written statement in the suit was filed on 26.02.2007 and on 03.04.2007 issues were framed, on 25.04.2007 the defendants filed list of the witnesses, whereas the amendment application was filed on 05.06.2007 which he could have filed before the commencement of the trial, thereby rejected the application for amendment as sought for vide order dated 31.07.2008 in Misc. (J) Case No. 312 of 2007 against which this revision petition has been filed questioning the legality and validity of the order dated 31.07.2008 invoking power under Article 227 of the Constitution of India. 9. Now the question is required to be answered in the instant revision petition as to whether the learned Court's finding is correct in rejecting the prayer for amendment by holding that since the issues have been framed, the defendants have submitted the list of witnesses and thus the trial has already been commenced, therefore, prayer for amendment cannot be allowed and/or whether the learned trial Court has acted in exercise of its jurisdiction illegally or with material irregularity in rejecting the prayer for amendment on the ground that the trial has already commenced and as such prayer for amendment cannot be allowed. 10. Heard Dr. G Lai, learned counsel appearing for the petitioner. Also heard Mr. 10. Heard Dr. G Lai, learned counsel appearing for the petitioner. Also heard Mr. S. Medhi, learned counsel appearing for the opposite parties. 11. Dr. Lal, learned counsel appearing on behalf of the petitioner, referring the provisions of Order 6, Rule 17 of the Code, more particularly, the proviso thereto would contend that the powers of the Court are wide enough to permit amendment of the plaint, more so, when during the pendency of the trial the plaintiff has been forcibly dispossessed from the suit premises resulting in seeking a decree of recovery of Possession which is within the ambit of power under Order 6, Rule17 of the Code and therefore, submitted that the learned trial Court has committed an illegality in exercise of jurisdiction so vested which require interference since no serious injustice would be caused if amendment of plaint is allowed. 12. In support of the contentions the following decisions are referred viz., (i) (2002) 7 SCC 559 : Sampath Kumar v. Ayyakannu and Anr. (ii) (2006) 4 SCC 385 : Rajash Kumar Aggarwal and Ors. v. K K. Modi and Ors. (iii) (2006) 6 SCC 498 : Baldev Singh and Ors. v. Manohar Singh andAnr. (iv) (2007) 6 SCC 167 : Andhra Bank v. ABN AMRO Bank N.V. and Ors. (v) AIR 1993 MP 248 : Narendra Singh Sengar v. Smti. Malti Devi and Ors. (Vi) AIR 2000 All 90 (M/s Om Rice Mill, Jaspur and Ors. v. Banaras State Bank Ltd, Kashipur and Anr. (vii) 2007 (2) GLT 499: Hindustan Paper Corporation Ltd.and Anr. v. L. M. Marketing (viii) 2007 (2) GLT 644: Abdul Khalique v. Abdul Sattar and Ors. In Sampath Kumar (supra), the Apex Court has held that in order to avoid multiplicity of suit, amendment should be allowed. In the case of Sampath Kumar amendment of the pleadings was sought for after 11 years of the filing of the suit. However, the Apex Court held that delay in praying for amendment by itself not a ground for rejecting the application. The Apex Court allowed the appeal, but in view of delay in filing application under Order 6, Rule 17 of the Code, appellant was directed to pay cost of Rs. 2000 as a condition precedent to incorporate the amendment in the plaint. The Apex Court allowed the appeal, but in view of delay in filing application under Order 6, Rule 17 of the Code, appellant was directed to pay cost of Rs. 2000 as a condition precedent to incorporate the amendment in the plaint. In Rajesh Kumar Aggarwal (supra), the Apex Court held that while permitting amendment of the plaint the Court needs to consider the subsequent events. The Apex Court further held that the Court should allow all amendment that may be necessary for determining the real question in controversy between the parties, provided it does not cause injustice or prejudice to the other side and it is the primary duty of the Court to decide whether such amendment is necessary to decide the real dispute between the parties. The Court should also take notice of subsequent events in order to shorten the litigation, to preserve and safeguard the rights of both parties and to subserve the ends of justice. In the said case, the Apex Court observed that on facts, if it was permissible for appellants to file an independent suit on basis of the amendment application turned down by the High Court, it is incomprehensible why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit and thereby allowed the prayer for amendment of the plaint. In Baldev Singh (supra), the Apex Court held that the Courts should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. The Court further held that the commencement of trial as used in proviso to Order 6, Rule 17 of the Code must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. In Andhra Bank (supra), The Apex Court held that while allowing the prayer for amendment or pleadings, the Court cannot go into the question of merit of such amendment, it can only consider, whether such amendment would be necessary for decision of real question in controversy between the parties concerned. In Narendra singh Sengar (supra), the case was reserved for judgment. In the said case while allowing amendment of the plaint the Court held that Court could consider the application for amendment of the pleadings even before pronouncement of judgment. In Narendra singh Sengar (supra), the case was reserved for judgment. In the said case while allowing amendment of the plaint the Court held that Court could consider the application for amendment of the pleadings even before pronouncement of judgment. In M/s Om Rice Mill (supra), the application for amendment of plaint was filed on the date fixed for judgment. Therefore, defendants objected filing of objection at such stage. The Court held that Order 6, Rule 17 permits amendment at any stage of the proceedings as may be necessary for the purpose of determining the real question in controversy between the parties. The expression at any stage of the proceedings is far more elastic than the stage contemplated in Order 9, Rule 7which specifies in no uncertain terms as to at what stage it will be attracted. Whereas the expression 'at any stage' used in Order 6, Rule 17 is not circumscribed or limited by any condition. The legislature in its wisdom had left the same very wide open without imposing any kind of limitation to its elasticity. If it is necessary for the purpose of determining the real question in controversy then it can be allowed before, or at or after the trial or even after judgment or in appeal. It can be allowed even before delivery of judgment. In Hindustan Paper Corporation Ltd. (supra), this Court has held that it is a settled position of law that Courts should be liberal in allowing amendment unless serious injustice or irreparable loss is caused to the other party. In Abdul Khalique (supra), this Court held that though the issues were framed the trial in the real sense had not commenced. Proviso to Order 6, Rule 17 does not create an absolute bar for allowing amendment after commencement of trial. In the said case, the Court observed that there should be liberal approach while allowing amendment and in that case this Court did not interfere with the order of the trial Court allowing amendment of the plaint. 13. Countering the arguments advanced by the counsel of the petitioner, Mr. In the said case, the Court observed that there should be liberal approach while allowing amendment and in that case this Court did not interfere with the order of the trial Court allowing amendment of the plaint. 13. Countering the arguments advanced by the counsel of the petitioner, Mr. Medhi, learned counsel representing the opposite parties/defendants would contend that the order passed by the learned trial Court do not require to be interfered with since there is a bar under the proviso to Order 6, Rule 17 of the Code as has been rightly held by the learned trial Court that amendment cannot be allowed after the commencement of trial, more so, due to new cause of action, nature and character of the suit will be changed. 14. Considered the argument advanced by the contesting parties. Perused the relevant records alongwith the pleadings. Admittedly the plaintiff filed the suit for declaration, permanent injunction and for realization of the costs of articles taken away from tenanted premises by the defendants. The basis for seeking the reliefs in the suit as pleaded is that the plaintiff was a tenant and the defendants cannot evict the plaintiff forcibly and illegally from the tenanted premises during the pendency of the suit. Alongwith the plaint an application under Order 39, Rules 1 and 2 was filed wherein the learned trial Court vide order dated 08.11.2006 directed to maintain status quo till 27.11.2006. However, the status quo order could not be extended due to the lapses of the plaintiff since there was no prayer for extension. As a consequence there of the plaintiff was forcibly dispossessed on 17.12.2006 from the tenanted premises which causes seeking the amendment of the plaint 15. There is also no dispute that on 26.02.2007 defendants filed written statements. The learned trial Court framed issues on 03.04.2007 and on 25.04.2007 the defendants filed list of their witnesses. Thereafter, the application for amendment was filed on 05.06.2007 which, however, admittedly was after several months and can be construed that the trial has been commenced as held by the learned trial Court. To answer this question the decisions of the Apex Court in Baldev Singh (supra) would suffice. Thereafter, the application for amendment was filed on 05.06.2007 which, however, admittedly was after several months and can be construed that the trial has been commenced as held by the learned trial Court. To answer this question the decisions of the Apex Court in Baldev Singh (supra) would suffice. As stated hereinabove, in paragraph 17 of the judgment, the Apex Court has held that commencement of the trial as used in proviso to Order 6, Rule 17 of the Code must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. The Apex Court in Ishwar Das v. State of Madhya Pradesh reported in AIR 1979 SC 551 has held that the expression "at any stage" occurring in Order 6, Rule 17 includes even at appellate stage. 16. In the instant case only written statement was filed whereon the issues were framed and the list of witnesses has been filed by the defendants from which it cannot be construed that trial has been commenced as it would appear from the records that the parties have yet to file their documentary evidence in the suit. From the materials available on records it also appeared the suit was not on the verge of conclusion. Therefore, the conclusion arrived at by the learned trial Court is due to misreading the proviso to Order 6, Rule 17 of the Code in holding that the trial has commenced since issues were framed and therefore, amendment cannot be allowed. The impugned order thus require interference considering the entire facts and circumstances of the case which this Court hereby do. 17. In the result, for the foregoing reasons and taking into consideration the decisions referred to by the learned counsel for the petitioner, this Court interfered with the eider dated 31.07.2008 passed in Misc. The impugned order thus require interference considering the entire facts and circumstances of the case which this Court hereby do. 17. In the result, for the foregoing reasons and taking into consideration the decisions referred to by the learned counsel for the petitioner, this Court interfered with the eider dated 31.07.2008 passed in Misc. (J) Case No. 312 of 2007 arising out of Title Suit No. 972 of 2006 thereby allowing the instant revision petition directing the learned trial Court to accept the amendment application allowing the plaintiff to incorporate the amendment of the plaint as sought for giving the defendants time to file their additional written statement on the amendment of the plaint and thereafter, the suit would proceed as usual directing the parties to do the needful as fixed by the learned trial Court making it further clear that the learned trial Court would not give adjournment except in exceptional circumstances which would cause delay in disposing the suit considering the fact that the suit relates to the year 2006. The parties are left to bear their own costs. 18. 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 09.05.2011 to obtain necessary order (s).