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2011 DIGILAW 420 (CAL)

Adyti Ghosh v. Sujata Banerjee

2011-03-23

DIPANKAR DATTA

body2011
Judgment : 1. The petitioner is the defendant no.2 in Title Suit No.67 of 2007, pending on the file of the learned Civil Judge (Senior Division), 6th Court at Alipore. The suit is one for eviction of the defendants on the ground of expiry of lease by efflux of time. The suit has been valued at Rs. 61,000/-, segregated in the following manner : i) for recovery of khas possession, the suit was valued at Rs. 8400/-; ii) for mesne profit, the suit was valued at Rs. 10,500/-; and iii) for damages the suit was valued at Rs. 42,100/-. 2. An application was filed by the defendant no.2/petitioner under Order VII Rule 10, Civil Procedure Code (hereafter the Code) for returning the plaint to the plaintiff/opposite party no.1 (hereafter the plaintiff) for its presentation to the Court of the lowest grade having jurisdiction to try the said suit. Before the learned trial Judge, contention was raised on behalf of the defendant no.2/petitioner that foundation of the plaintiff’s claim on account of damages was lacking in the plaint and that such claim had been included only for avoiding a particular forum. The application was rejected by the learned trial Judge by an order dated May 7, 2008. He held that whether any case for damages had been made out or not would be considered at the time of trial of the suit and not at the stage the application for return of plaint was being considered. 3. Feeling aggrieved thereby, the defendant no.2/petitioner had the occasion to approach this Court by filing an application under Article 227 of the Constitution, being C.O. 1636 of 2008. Upon hearing the parties, a learned Judge of this Court passed an order dated June 23, 2009 disposing of the revisional application. Operative portion of the order reads as follows : “In my view, this is a fit case where the learned Trial Court ought to have considered the pleadings of the plaintiff as a whole and also should have passed necessary order for striking out unnecessary pleadings from the plaint in terms of the provision contained in Order 6 Rule 16 of the Civil Procedure Code, so that a party may not be encouraged to file a suit in a Court of his choice by bypassing the provision contained in Section 15 of the Civil Procedure Code by increasing the valuation of the suit. Accordingly, this Court disposes of this revisional application by permitting the plaintiff to make necessary amendment in the said suit within two weeks from date and in the event the plaintiff applies for such amendment, the Court will consider the same on its own merit after giving the defendant an opportunity to file objection against the plaintiff’s said application. In the event, however, no such application is filed by the plaintiff before the learned Trial Judge in this regard or in the event the Court finds that the plaintiff’s application for amendment of plaint cannot be allowed, then the learned Trial Judge will consider the plaintiff’s pleading as made out in the plaint as a whole for taking the ultimate decision for striking out the unnecessary pleadings therefrom as per Order 6 Rule 16 of the Code of Civil Procedure and thereafter to take the ultimate decision regarding the defendant’s prayer for return of the plaint in the said suit.” 4. The plaintiff in terms of the aforesaid order, if it were to be construed strictly, was required to file an application for amendment of plaint by August 7, 2009. However, she filed an application under Order VI Rule 17 of the Code for amendment of the plaint on December 4, 2009 i.e. nearly 4 (four) months beyond the time specified by this Court. 5. The application came up for consideration before the learned trial Judge on April 19, 2010. It was contended on behalf of the defendant no.2/petitioner that since the application for amendment had not been filed within the time frame fixed by this Court, the plaint ought to be returned for presentation before the appropriate court having jurisdiction. 6. It was contended on behalf of the plaintiff that this Court had not in any manner limited her right to file an application for amendment within a particular time frame and, therefore, merely on the ground that the same had not been filed within two weeks would not impinge the trial Court’s jurisdiction to decide such application. In support of such contention, reliance was placed on the decisions reported in 2009 (2) CLJ (Cal) 276 and 1996 WBLR (Cal) 27. 7. In support of such contention, reliance was placed on the decisions reported in 2009 (2) CLJ (Cal) 276 and 1996 WBLR (Cal) 27. 7. The learned trial Judge in his order dated April 19, 2010 recorded that the decisions referred to above were applicable in the case before him and that there was no merit in the contention of the defendant no.2/petitioner that the plaint ought to be returned. The application under Order VI Rule 17 was allowed, permitting amendment of the plaint. Consequently, the application under Order VII Rule 10 of the Code stood disposed of. This order is under challenge in the present application under Article 227 of the Constitution. 8. Mr. Mukherjee, learned advocate appearing in support of the application contended that this Court having granted liberty to the plaintiff to apply for amendment within a particular time frame and the liberty not having been availed of, the learned trial Judge had no jurisdiction to entertain the prayer for amendment which was made months after expiry of the last date. It was further contended that the Court having fixed the time frame for filing the application for amendment, Section 148 of the Code would have no application since no prayer for extension of time was made before the concerned Court. He, accordingly, prayed for setting aside the order impugned. 9. Defending the order impugned, Mr. Chatterjee, learned senior advocate representing the plaintiff contended that the learned trial Judge was perfectly justified in allowing the application for amendment. He referred to provisions contained in Order VI Rule 17 of the Code to contend that the trial Court being empowered to allow amendment of pleadings at any stage of the proceedings, if such amendment is required to be made in the interests of justice, and the time frame fixed in the order dated June 23, 2009 not being worded in mandatory terms, no jurisdictional error had been committed by the learned trial Judge in allowing the amendment. Accordingly, he prayed for dismissal of the application. 10. I have heard Mr. Mukherjee and Mr. Chatterjee. 11. The order under challenge has to be tested keeping in mind the observations of the Court quoted (supra). 12. Accordingly, he prayed for dismissal of the application. 10. I have heard Mr. Mukherjee and Mr. Chatterjee. 11. The order under challenge has to be tested keeping in mind the observations of the Court quoted (supra). 12. It appears from a bare reading of the order dated July 23, 2009 that the Court had interdicted because the learned trial Judge while passing the order under challenge dated May 7, 2008 had not considered absence of foundation to maintain the claim for damages, which rendered the claim itself surplusage. The plaint, in its present form, therefore could not have been considered by the learned trial Judge. If no amendment were to be effected, the suit would have to be tried by the Court of the lowest grade having jurisdiction to try it. In order to prevent undue delay, grant of leave to the plaintiff to file an application for amendment within two weeks and for disposal thereof by the trial Court followed in the manner as directed. Importantly, there was no observation to the effect that if the plaintiff did not file any application for amendment within two weeks, her right to file an application for amendment would be closed for all times to come. 13. In terms of Order VI Rule 17 of the Code, an application for amendment of plaint could be made at any stage of the proceedings provided the trial has not commenced. Even after trial has commenced, one is not precluded from applying for amendment. If he does so, the same has to be disposed of in the manner required by the proviso. Here, the trial has not commenced and only the response of the defendant no.2/petitioner has been received in respect of the original plaint. This Court did not observe that if application under Order VI Rule 17 is not filed within two weeks, the default would result in forfeiture of the right to apply for amendment at a future date. In a case of the present nature, the question that is to be posed is whether the terms of the order ought to be construed as directory in nature or mandatory. I am of the firm view that for absence of consequences that might ensue for not availing the liberty to apply within two weeks, the order ought to be construed as directory. I am of the firm view that for absence of consequences that might ensue for not availing the liberty to apply within two weeks, the order ought to be construed as directory. Consequently, the default of the plaintiff in maintaining the time limit fixed in the order dated June 23, 2009 cannot be regarded as fatal. Mere belated filing of the application for amendment did not denude the learned trial Judge of his power to grant leave if the amendment, in his considered view, deserved to be allowed in the interest of justice. The contention raised on behalf of the defendant no.2/petitioner resting on the order of the Court dated July 23, 2009 appears to be not well conceived. 14. I hold that in allowing the application for amendment under Order VI Rule 17 of the Code and disposing of the application under Order VII Rule 10 thereof filed by the defendant no.2/petitioner without any order in her favour, the learned trial Judge did not act illegally in the exercise of his jurisdiction or beyond the bounds of his authority warranting interference under Article 227 of the Constitution; on the contrary, jurisdiction vested in him was duly exercised. 15. The application is devoid of merit. It stands dismissed, without order for costs.