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2012 DIGILAW 1030 (CAL)

Ajay Kumar Paul v. Sushil Kumar Sah

2012-12-11

SANJIB BANERJEE

body2012
Judgment : The plaintiffs in a suit for declaration and injunction relating to an alleged illegal construction seek to revise an order rejecting the application for amendment of the plaint after several witnesses had been called in course of the trial. The plaintiffs insist that a mechanical adherence to the proviso to Order VI Rule 17 of the Civil Procedure Code cannot result in injustice being occasioned to a party and the proviso does not mandate a Court abdicating its duty to ascertain whether a proposed amendment brings to the fore the real controversies between the parties. The petitioners say that notwithstanding the 2002 Amendment to Order VI Rule 17 of the Code, the two guiding factors still continue to be the interest of justice and the real controversy tests, as has been recognized recently in a judgment reported at (2011) 12 SCC 268 . 2. The case run in the plaint is that the first defendant had apparently made an illegal construction over a part of the plaintiffs' property in what is described as schedule 'C' to the plaint. The plaintiffs allege, inter alia, at paragraphs 9 to 11 of the plaint, that following the construction work being taken up by the first defendant, the plaintiffs complained to the Howrah Municipal Corporation and even to the police authorities and instituted proceedings under Section 144 of the Criminal Procedure Code. Paragraph 11 of the plaint refers to the plaintiffs' objection having been taken up by an assistant engineer of the Howrah Municipal Corporation and a hearing being given on February 9, 2009. The plaintiffs, however, recount in the plaint that neither the municipal corporation nor the first defendant made the plaintiffs aware of the outcome of the hearing. 3. In the written statement lodged by the first defendant, it was vaguely stated that the construction had been undertaken as per the rules and that there was some regularisation upon requisite fees being paid by the first defendant. 3. In the written statement lodged by the first defendant, it was vaguely stated that the construction had been undertaken as per the rules and that there was some regularisation upon requisite fees being paid by the first defendant. There was no assertion that the first defendant had paid any fine or penalty; the words used were, "(the) renovation work has been regularized by the HMC by accepting the amount from the defendant No.1 as per rules." Despite the categorical assertion in paragraph 11 of the plaint that a hearing on the plaintiffs' objection had been taken up by the corporation but the plaintiffs had not been intimated the result thereof, the first defendant glossed over such aspect of the matter in the written statement filed in the year 2010, The second and third defendants - the corporation and its mayor-also filed a written statement around the same time. The averments in paragraphs 3 to 19 of the plaint have been traversed at paragraph 12 of such written statement. Again, the second defendant, which was called upon to address the specific averments in paragraph 11 of the plaint, did not indicate the result of the hearing conducted before it or that some infraction of the rules had been committed by the first defendant which had subsequently being regularised by the corporation. 4. It was in course of a sub-assistant engineer of the corporation being called as witness by the plaintiffs that it came to light that there was some alleged illegality or irregularity in the construction and that the matter had apparently been regularised. Shortly after the sub-assistant engineer stepped off the box in the suit, the plaintiffs applied in early 2012 for amendment of the plaint, to incorporate both the events subsequent to the hearing given to the plaintiffs by the corporation on February 9, 2009 as apparent from the deposition of the said witness and an additional relief for annulment of the process of regularisation. 5. The trial Court held that since the matter as to regularisation had been averred in the first defendant's written statement, the plaintiffs had been put on notice in 2010 and should have, in exercise of due diligence, applied for amendment long prior to the commencement of the trial. 5. The trial Court held that since the matter as to regularisation had been averred in the first defendant's written statement, the plaintiffs had been put on notice in 2010 and should have, in exercise of due diligence, applied for amendment long prior to the commencement of the trial. The first defendant refers to a judgment reported at (2009) 2 SCC 409 and stresses on paragraph 11 thereof for the opinion expressed by the Supreme Court that the condition envisaged in the proviso to Order VI Rule 17 of the Code was the jurisdictional basis that had to be asserted and established before a belated application for amendment of pleadings could be allowed. The first defendant has also referred to a judgment of this Court reported at (2011) 5 CHN (Cal) 442 where a Single Judge of this Court was satisfied, on facts, that the trial Court had not erred in concluding that the belated application of the applicant for amendment did not reveal that in spite of exercise of due diligence the applicant could not have raised the matter before the commencement of the trial. 6. Ordinarily, as the proviso to Order VI Rule 17 mandates, an application for amendment of pleadings should not be entertained-and far less allowed-for the mere asking if it is brought at a belated stage, especially if the trial has commenced. But the proviso does not create an insurmountable bar in all circumstances; it only makes the more liberal approach adopted under the 2002 Amendment to the Code as to the amendment of pleadings stricter in case of a belated application. There is no doubt that the tests still continue to be as to whether the amendment would be in the interest of justice and as to whether the real controversies between the parties can be determined upon the amendment being taken on record. The other considerations that have been judicially recognised are, inter alia, as to whether the nature and character of the claim or defence, as the case may be, is sought to be altered; whether a case originally run or an admission made is endeavoured to be detracted from; and, whether a valuable right accrued to the other party is attempted to be put at nought or diluted. 7. 7. Order VI Rule 17 of the Code is not to be read in isolation of the judicially recognised grounds for allowing an amendment as evident from the body of the Rule. It is not as if the proviso to the Rule is the be-all or end-all of the provision at which altar every belated application, regardless of merit, must be sacrificed. Judicial exercise requires a fine balancing act inter alia, by putting the applicant on terms as the body of the Rule suggests and, as much as the proviso advocates a degree of discipline and strictness, the cause of justice cannot be held ransom to the clerical application of the proviso. 8. In the instant case, it does not appear from the written statement of either set of defendants that any categorical statement or even a passing reference was made as to the regularisation of the construction upon there being any infraction of the building rules or of any order adverse to the plaintiffs having been passed or communicated to the plaintiffs. Both sets of defendants had an opportunity to make such assertion while dealing with paragraph 11 of the plaint. In the defendants not having averred what may have been expected of them in the circumstances and in the plaintiffs only discovering the facts that they sought to incorporate in course of the oral evidence of the sub-assistant engineer of the corporation, the jurisdictional fact of due diligence was more than adequately complied with for the plaintiffs to be eminently entitled to have the amendment as sought to be allowed. 9. For the reasons aforesaid, the order impugned dated August 2, 2012 dismissing the petitioners' application for amendment of the plaint is set aside and the amendments as indicated in the schedule of amendments to the plaintiffs' relevant application stand allowed. It is made clear, though it is quite unnecessary, that the observations here must be restricted to the context of the present purpose and cannot be seen to be any pronouncement on the merits of the disputes between the parties in the suit and will have no bearing at the trial. 10. The plaint should be amended by January 15, 2013 and copies of the amended plaint forwarded to the defendants immediately thereafter. The defendants will have an opportunity to file additional written statements within three weeks from the date of receipt of the amended plaint. 10. The plaint should be amended by January 15, 2013 and copies of the amended plaint forwarded to the defendants immediately thereafter. The defendants will have an opportunity to file additional written statements within three weeks from the date of receipt of the amended plaint. The trial Court is requested to ensure that the trial continues after the period for filing further pleadings is over. 11. C.O. No. 3750 of 2012 is allowed as above without any order as to costs. Urgent certified photocopies of this order, if applied for, will be made available to the parties subject to compliance with all requisite formalities.