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2011 DIGILAW 491 (CAL)

Niranjan Bar v. Nirmal Bar

2011-04-05

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendants and is directed against the order no.42 dated December 15, 2009 passed by the learned Civil Judge (Junior Division), 2nd Court, Basirhat in Title Suit No.76 of 2004. The plaintiff / opposite party herein instituted a suit against the defendants praying for a decree or confirmation of title, permanent injunction and other reliefs before the learned Civil Judge (Junior Division), Basirhat. In that suit, the defendant / petitioner herein is contesting by filing a written statement. The issues have been framed. The plaintiff’s evidence had been closed and the suit was at the stage of recording evidence on behalf of the defendant. At that state, the plaintiff filed an application for amendment of the plaint. That application for amendment of the plaint was allowed by the learned Trial Judge holding that the proposed amendment is necessary for the disposal of the suit and that if allowed, it will not change the nature and character of the suit. So, the application for amendment of the plaint was allowed on payment of costs of Rs.1,000/- to the defendant. Being aggrieved, by such order, the defendant has come up with this application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the suit filed by the plaintiff / opposite party herein was for confirmation of title and possession and for permanent injunction against the defendant. The amendment has been sought for after close of the evidence on behalf of the plaintiff. The suit was filed in the year of 2004 i.e. after amendment of the C.P.C. in the year 2002. The amendment has been sought for after close of the evidence on behalf of the plaintiff. The suit was filed in the year of 2004 i.e. after amendment of the C.P.C. in the year 2002. So, the amendment should be governed by the Rule 17 of Order 6 of the C.P.C. For convenience, the said provision of Order 6 Rule 17 of the C.P.C. is quoted below: 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. Thus, in the instant situation, in order to consider whether the learned Trial Judge is justified in allowing the application for amendment of the plaint, the substantive provision is the proviso to Rule 17 of Order 6 of the C.P.C. and before allowing an application it must be proved that the condition laid down in the said proviso has been fulfilled. As to the provision of taking due diligence for amendment, the ground stated by the petitioner, I am of the view, is not tenable at all. The plaintiff / opposite party herein has wanted to incorporate a paragraph as 3(Ka) stating a fact that the defendant no.1 registered a deed of sale dated March 27, 1987 in favour of Matangini Bar and Sanat Kumar Bar over 93 decimals land including the land in suit. There was an agreement for repurchase. In the mean time Matangini Bar died and so Niranjan Bar executed a deed of re-conveyance in favour of Sanat Kumar Bar. The plaintiff could not gather that deed from Sanat Bar but obtained a copy of the same on July 7, 2004. The instant suit was filed on June 24, 2004. At first, he could not find the same deed. Moreover, it was obtained after filing of the said suit during the last ‘Aila’ (Flood). The plaintiff could not gather that deed from Sanat Bar but obtained a copy of the same on July 7, 2004. The instant suit was filed on June 24, 2004. At first, he could not find the same deed. Moreover, it was obtained after filing of the said suit during the last ‘Aila’ (Flood). While the plaintiff was removing the papers, he noticed the said deed and as such he has prayed for amendment of the plaint after close of the evidence on behalf of the plaintiff. Now, the question is whether such fact is believable and it amounts to the fact that he could not produce the same earlier in spite of due diligence for the purpose. Mr. Gupta appearing on behalf of the petitioner has referred to the decision reported in (2006)12 Supreme Court Cases 1 and, thus, he submits that the trial of the suit commences from the stage of framing of issues and recording evidence. In the instant case, the evidence of the plaintiffs had already been completed and the suit was at the stage of recording evidence on behalf of the defendants. Therefore, the said suit was at the stage of trial according to the above decision. So, unless due diligence is proved, the amendment should not be allowed. Mr. Gupta has next contended that according to the ratio of AIR 2009 Supreme Court 1177, the Court must be liberal to grant amendment. But at the same time, it should be looked into whether the proposed amendment is barred by limitation. The proposed amendment has been sought for on August 12, 2009 with regard to the deed of 1992, it is not only barred by limitation at the time of filing of the application for amendment but also at the time of filing of the suit. As soon as amendment is granted, the proposed amendment relates to the date of filing of the suit. So, if the amendment is allowed, the question of limitation should be kept open. Thus, Mr. Gupta has made two-fold submissions for rejection of the application for amendment of the plaint. So far as the first contention that despite due diligence the plaintiff could not produce the document earlier, I am of the view that the reasons assigned by the plaintiff are not believable at all. Thus, Mr. Gupta has made two-fold submissions for rejection of the application for amendment of the plaint. So far as the first contention that despite due diligence the plaintiff could not produce the document earlier, I am of the view that the reasons assigned by the plaintiff are not believable at all. The copy of the said deed of 1992 was very much in the possession of the plaintiff just after one month from the date of filing of the suit. Immediately thereafter, he should have prayed for amendment of the plaint on getting copy of the said document. He remained silent up to the stage of completion of the evidence on his behalf. The contention of plea of ‘Aila’, I hold, is not believable in the circumstances. It is nothing but an afterthought to cover up the delay in seeking the amendment. In such a situation according to the decision of (2006)12 Supreme Court Cases 1, I am of the view that the plaintiff has failed to show sufficient reasons that despite due diligence he could not seek for amendment of the plaint at an earlier stage. Since evidence on behalf of the plaintiff is closed and at this stage if the amendment is allowed, certainly the defendant will be prejudiced. He has set up his defence according to the pleading of the plaintiff and so by the proposed amendment, the defendant could not be placed to a disadvantaged position in spite of his no fault on his part. Mr. S.S. Roy, learned Advocate for the opposite parties has referred to the decision of 2009(1) Calcutta Law Journal 593 that the amendment should be allowed for determining the real controversy between the parties and the basic structure to the suit is not changed. The defendant’s decision relates to a suit governed by the provisions of pre-amendment of the C.P.C. in 2002. So, that decision will not be applicable at all in the instance case. In the instance case, the controlling fact is the proviso to order 6 Rule 17 of the C.P.C. If this proviso is not fulfilled, the prayer for amendment should not be allowed. Accordingly I am of the view that the learned Trial Judge has failed to exercise is jurisdiction properly. The impugned order cannot be supported. The revisional application is, therefore, allowed. The impugned order is hereby set aside. Accordingly I am of the view that the learned Trial Judge has failed to exercise is jurisdiction properly. The impugned order cannot be supported. The revisional application is, therefore, allowed. The impugned order is hereby set aside. The application for amendment of the plaint dated July 8, 2009 was stands dismissed. Considering the circumstances, there will be no order as to costs.