Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 870 (CAL)

Kanchan Chowdhury v. Bakul Chowdhury

2011-07-01

DIPANKAR DATTA

body2011
JUDGMENT 1. ORDER dated September 16, 2010 passed by the learned Civil Judge (Junior Division), 2nd Court at Ranaghat, Nadia rejecting an application for amendment of plaint under ORDER 6 Rule 17, Civil Procedure Code (hereafter the Code) filed in connection with T.S. No.114 of 2006 is questioned in this application under Article 227 of the Constitution of India. 2. ON perusal of the plaint it appears that the defendant, the brother of the plaintiff had approached her to execute a power of attorney in his favour so that even in the absence of the plaintiff, he could take effective steps on her behalf in connection with a partition suit initiated by them against other co-sharers, which is pending in a Court at Krishnagar, District Nadia. The plaintiff, it is claimed, is an illiterate lady who any how is able to sign. She had signed certain pages of a written instrument which she thought was the power of attorney, on the instruction of the defendant as well as a clerk. She had also been to a studio along with the defendant for having a photograph clicked. The power of attorney was executed on May 17, 2006 in the office of the ADSR, Krishnagar, Nadia. However, on October 10, 2006, another brother of the plaintiff called her on telephone and enquired whether she had executed a deed of gift in respect of her share of the joint property in favour of the defendant. The plaintiff was astonished to hear the same, since she had not executed any deed of gift. An application for obtaining certified copy of the registered instrument executed by her on May 17, 2006 was made. ON obtaining the certified copy, the plaintiff came to learn that the defendant cunningly had created/manufactured a deed of gift instead of a power of attorney and had thereby succeeded in having her share in the joint property gifted to him. Alleging that the said deed of gift is not binding upon her, the plaintiff instituted the suit on December 7, 2006, out of which the order impugned herein arises, praying for declaration that the said deed of gift dated May 17, 2006 be declared void, illegal, fraudulent, fake and not binding upon her and for further declaration that the defendant did not derive any right, title or interest by virtue of the said deed. It was further prayed that a decree be passed declaring that the plaintiff is the absolute owner of the suit property mentioned in Schedule "A" and for permanent injunction restraining the defendant from alienating the suit property or from doing any act harmful to the suit property. The defendant entered appearance and filed his written statement. After issues were framed, trial commenced. In all, six witnesses were examined on behalf of the plaintiff. The defendant also filed his affidavit evidence-in-chief. In the process, four years rolled by. 3. IT was at this stage that the plaintiff presented an application dated April 12, 2010 before the trial Court and prayed for amendment of the plaint. She averred therein that at the time of institution of the suit, being illiterate she did not narrate her case properly to the advocate engaged by her as a consequence whereof there has been omission to state certain facts in the plaint which surfaced at the time when she "was confronted about the case by her newly engaged advocate". Amendments which the plaintiff proposed to introduce are found in the schedule appended to the application. Two paragraphs were sought to be added after paragraph 14 of the plaint, being 14(a) and (b). Paragraph 14(a) appears to be a repetition of the plaint case that the plaintiff was given to understand that she was executing a power of attorney in favour of the defendant and that she signed the document as per direction of the defendant and the advocate engaged by him which, however, is different from the plaint case in the sense that there a clerk was referred to. In paragraph 14(b), the plaintiff sought to set up a plea that the said deed was never read over or explained to her and the advocate was also not known to her. IT was further claimed that though her husband and daughter had signed the deed as attesting witness and identifier respectively, their signatures "were procured by the defendant with false personification". Since in the relevant deed both Bablu Chowdhury (the plaintiff"s husband) and Sampa Chowdhury (the plaintiff"s daughter) had signed, alibi in respect of the husband and daughter of the plaintiff was set up and it was claimed that they were not at all present at Krishnagar registration office on the fateful day. Since in the relevant deed both Bablu Chowdhury (the plaintiff"s husband) and Sampa Chowdhury (the plaintiff"s daughter) had signed, alibi in respect of the husband and daughter of the plaintiff was set up and it was claimed that they were not at all present at Krishnagar registration office on the fateful day. IT was also claimed that the other attesting witnesses are the henchmen of the defendant and the plaintiff never had the occasion to see them sign as attesting witnesses and in that sense the said deed was not validly attested and executed as per Section 123 of the Transfer of Property Act. Certain other amendments were also prayed for, which do not form the bone of contention. 4. WHEN the application came up for consideration before the learned Judge, it was submitted that the amendments were necessary for determining the real question in controversy and that if the same are allowed, the same would not prejudice the defendant. It was further submitted that the plaintiff ought not to suffer for the laches of the advocate initially engaged by her. The application was opposed by the defendant, who invited the attention of the learned Judge to the proceedings before him. The evidence of the prosecution witnesses had been closed and the defendant had already filed his affidavit evidence-in-chief and it was suggested that the plaintiff was trying to fill up the lacuna in her evidence by filing an application for amendment of plaint. Attention of the learned Judge was also drawn to the proviso in Order VI Rule 17 of the Code and it was submitted that the material facts, which the plaintiff proposed to introduce, were not such that the same could not have been raised before commencement of trial in spite of due diligence. 5. THE learned Judge upon consideration of the rival claims proceeded to hold that in view of the proviso to Order VI Rule 17 of the Code, the amendments, as prayed for, could not be allowed. It was observed that the plaintiff was all along aware of the facts giving rise to the suit and that the proposed amendments were really intended to fill up the lacuna in the evidence. It was observed that the plaintiff was all along aware of the facts giving rise to the suit and that the proposed amendments were really intended to fill up the lacuna in the evidence. It was further held that it was not the laches on the part of the advocate engaged by the plaintiff and after four years of institution of the suit, she had conveniently tried to shift the blame on her earlier advocate. THE decision of the Supreme Court reported in AIR 2007 SC 2577 [Ram Chandra Sakharam Mahajan v. Damodar Trimbaksale (D) and ors.] placed on behalf of the plaintiff was distinguished on the ground that the same had no application on facts and in the circumstances. THE learned Judge, however, followed the decision of the Punjab and Haryana High Court reported in 2010 (2) ICC 576 (Khushi Ram v. Murli Manohar Thatheran Panchayati Mandir and Dharamsala Society). He, accordingly, rejected the application. 6. MR. Roy, learned advocate appearing for the plaintiff/petitioner contended that the amendments proposed by her did not have the effect of changing the cause of action and that the same are necessary for complete and final decision on the controversy between the parties. According to him, the plaintiff/petitioner intended to state her case more precisely and the learned Judge fell in error in rejecting the application on the ground of delay. The discretion conferred on the learned Judge, it was further urged, had not been properly exercised and the defendant could have been adequately compensated by payment of costs or otherwise. In support of his submission that the prayer for amendment ought to have been allowed, MR. Roy relied on the decisions of the Supreme Court reported in (2009) 10 SCC 626 (Surinder Kumar Sharma v. Makhan Singh) and AIR 1985 SC 817 (Vineet Kumar v. Mangal Sain Wadhera). He, accordingly, prayed that the impugned order be set aside and the amendments allowed on such terms as this Court considers fit and proper. Mr. Kundu, learned advocate representing the defendant, vehemently opposed the application. He contended that the suit was instituted on December 7, 2006 and the defendant disclosed his defence by filing written statement on March 7, 2007. He, accordingly, prayed that the impugned order be set aside and the amendments allowed on such terms as this Court considers fit and proper. Mr. Kundu, learned advocate representing the defendant, vehemently opposed the application. He contended that the suit was instituted on December 7, 2006 and the defendant disclosed his defence by filing written statement on March 7, 2007. The application under Order VI Rule 17 of the Code was filed at a stage when the witnesses on behalf of the plaintiff had tendered their respective oral evidence and the defendant had also filed his affidavit evidence-in-chief. It was after such developments that the application had been filed which, according to him, smacks of utter bad faith of the plaintiff. Referring to the proviso to Order VI Rule 17 of the Code, he further contended that the plaintiff had utterly failed to convince the learned Judge that in spite of exercise of due diligence the facts sought to be introduced in the plaint could not have been raised earlier. The attempt of the plaintiff to amend her plaint not being bonafide, he urged this Court to dismiss the revisional application. 7. THE learned advocates for the parties have been heard and the materials on record considered. THE proviso to Order VI Rule 17 of the Code inserted by the Code of Civil Procedure (Amendment) Act, 2002 ordains as follows : "Provided that no application for amendment shall be allowed if the trial has commenced, unless the Court comes to the conclusion that inspite of due diligence, the party could not have raised the matter before the commencement of trial." 8. HAVING regard to the express terms of Section 16(2)(b) of the Amendment Act, 2002, there can be no doubt that the proviso, extracted (supra), would not be applicable in respect of suits instituted prior to enforcement thereof i.e. July 1, 2002. In the decision in Surinder Kumar Sharma (supra), the year of institution of the suit is not available. The decision does not refer to the proviso at all. It stands to reason that the decision related to a suit which was instituted prior to introduction of the proviso in Order VI Rule 17 of the Code. The decisions in Vineet Kumar (supra) as well as Ram Chandra Sakharam (supra) are also decisions rendered in respect of suits which were instituted prior to introduction of the proviso. It stands to reason that the decision related to a suit which was instituted prior to introduction of the proviso in Order VI Rule 17 of the Code. The decisions in Vineet Kumar (supra) as well as Ram Chandra Sakharam (supra) are also decisions rendered in respect of suits which were instituted prior to introduction of the proviso. In the considered view of this Court, the ratio laid down in the said decisions would have no application having regard to the amendment that Order VI Rule 17 of the Code has suffered. The wide discretion that the Court enjoyed in respect of granting a prayer for amendment of plaint at any stage of the proceedings of the suit appears to have been curtailed by the proviso in Rule 17, which is in a negative form, and resultantly has the effect of limiting the Court"s power to grant amendment only after it is convinced that the matter sought to be raised could not be raised earlier than commencement of trial despite due diligence. Change of intention of the Parliament is obvious. The amendment is intended to cut down the delay in finalization of suits and to ensure quick disposal thereof. In its decision reported in M. Pentiah and others v. Muddala Veeramalappa and others : [1961] 2 SCR 295, the Supreme Court ruled that "negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative". A decade and a half later, it was further held by the Supreme Court in its decision reported in AIR 1976 SC 714 : Lachmi Narain v. Union of India that if the provision is couched in prohibitive or negative language, it can rarely be directory, the use of peremptory language in a negative form is per se indicative of the intent that the provision is to be mandatory. Not too long ago, the Supreme Court in its decision reported in (2003) 2 SCC 577 : Nasiruddin v. Sita Ram Agarwal had the occasion to reiterate that when negative words are used, the Courts will presume that the intention of the legislature was that the provisions are mandatory in character. The will of the people expressed by the Parliament by amending Rule 17 and introducing the proviso therein has to be respected or else the very purpose for such introduction would be frustrated. The will of the people expressed by the Parliament by amending Rule 17 and introducing the proviso therein has to be respected or else the very purpose for such introduction would be frustrated. Having regard to the language in which the proviso is couched, amendment of plaint cannot and ought not to be allowed by the Courts now liberally. Whether or not after commencement of trial amendment should be allowed or not must depend on the acceptability of the cause shown by the party seeking amendment. The Court has to be convinced that there were genuine reasons disabling the party seeking amendment from raising such issue before commencement of trial despite exercise of due diligence. In the absence of such conviction, prayer for amendment cannot be granted by the Court even if the proposed amendment may not change the cause of action or may even be necessary for the purpose of determining the real questions in controversy between the parties. 9. INSOFAR as the present case is concerned, it appears from a reading of the application for amendment filed by the plaintiff that she being illiterate could not narrate her case properly to the advocate engaged by her as a consequence whereof certain vital facts had not been stated in the plaint. That there have been omissions was revealed when she was confronted by her newly engaged advocate. 10. THE plea that the plaintiff is an illiterate lady is proposed to be examined first. This Court is convinced that she is not so na"ve as she projects herself to be. She had initially signed the affidavit accompanying the present application and the vakalatnama in English. Thereafter, the same were scored off and she again signed in Bengali. THE Court enquired from Mr. Banerjee, learned advocate-on-record for the petitioner as to why she signed in Bengali after signing the papers in English. THE reply was that on the instructions of his clerk, the plaintiff had done so. It may be correct but scrutiny of the signatures of the plaintiff in Bengali as well as in English would unmistakably lead one to the conclusion that the strokes used while writing the Bengali alphabets are not of one who is barely able to write such alphabets. It may be correct but scrutiny of the signatures of the plaintiff in Bengali as well as in English would unmistakably lead one to the conclusion that the strokes used while writing the Bengali alphabets are not of one who is barely able to write such alphabets. THE plea taken before the learned Judge as well as before this Court that the plaintiff is illiterate in the sense that she can anyhow sign is, therefore, hardly convincing. However, this Court does not wish to rest its conclusion only on the basis of the handwriting of the plaintiff. By its very nature, the amendments that the plaintiff seeks to introduce reveals that she intends to incorporate in the plaint the circumstances in which she was driven to sign the document placed before her, the alibi of her husband and daughter, and absence of the persons at the site who appear to have signed as attesting witnesses. The time gap between alleged execution of the deed of gift and institution of the suit is less than six months. It is difficult to imagine that the plaintiff was unable to say that her husband and daughter as well as the attesting witnesses were not present at the time of execution less than six months after the alleged incident but she could recollect the facts after four years. The diligence that was shown by the plaintiff after engaging a new advocate was unfortunately missing at or about the time the suit was instituted. If only the plaintiff had exercised due diligence, the facts could have been narrated clearly and properly to enable the erstwhile advocate to draw up the plaint accordingly. The diligence that is expected of a suitor in a suit of the present nature where the plaintiff alleges that her own brother has cheated her was absent; not only that, allegation has been leveled in course of arguments before the learned Judge that it was the erstwhile advocate who is to be blamed without there being any pleading in this respect in the application for amendment. This Court has no hesitation to hold that at this stage of the proceedings of the suit, when the prosecution has completed leading evidence on its behalf and the defendant has filed his affidavit evidence-in-chief, it would be causing immense prejudice to the defendant if the plaintiff’s application for amendment were to be allowed. 11. This Court has no hesitation to hold that at this stage of the proceedings of the suit, when the prosecution has completed leading evidence on its behalf and the defendant has filed his affidavit evidence-in-chief, it would be causing immense prejudice to the defendant if the plaintiff’s application for amendment were to be allowed. 11. THIS Court agrees with the learned Judge that no case was set up by the plaintiff for exercising discretion in her favour. The order impugned is upheld. The application fails and is dismissed, without order for costs. 12. URGENT photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.