Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 119 (CAL)

Ranjit Ghosh v. Manoj Pal

2012-02-07

HARISH TANDON

body2012
JUDGMENT HARISH TANDON, J.: 1. This revisional application is directed against order dated 20th November, 2008 passed by learned Civil Judge (Sr. Division), Alipore in Title Suit No. 62 of 1998 by which an application for amendment of the plaint filed by the opposite party No. 2 is allowed. 2. In a suit for partition and accounts instituted by the opposite party No.1 against the petitioner, opposite party No. 2 and one Hari Narayan Ghosh (since deceased). On the death of the said Hari Narayan Ghosh, his name was struck off and the opposite party No. 2 was transposed to the category of plaintiff No. 3. 3. It is a specific case of the petitioner that the said Hari Narayan Ghosh (since deceased) in his written statement specifically contended that he has gifted his share in respect of the suit property to the petitioner by executing a deed of gift. Upon the death of the said Hari Narayan Ghosh and after his name is deleted, the petitioner filed an additional written statement by taking the same defence as was taken by the said deceased which was eventually allowed. 4. Subsequently the opposite party No. 2 filed an application for amendment of the plaint by incorporating the necessary averments relating to the declaration of the said deed of gift being void and also insertion of the prayer in respect thereof. 5. While assailing the said order Mr. Prabal Mukherjee, the learned advocate appearing for the petitioner, submits that the amendment is sought by one of the plaintiffs i.e. opposite party No. 2 which is not permissible. He strenuously submits that the opposite party No. 2 being the co-plaintiff did not agree with the said amendment which is a joint statement of the plaintiffs and there cannot be two plaints in one suit. 6. Mr. Sabyasachi Bhattacharjee, the learned advocate appearing for the opposite party, submits that there is no impediment on the part of the co-plaintiff to file an application for amendment of the plaint but such amendment should not be inconsistent with the original pleading and placed reliance upon a judgment of this court in case of Sardindu Sekhar Banerjee –vs- Amiya Pal reported in 50 CWN 518. 7. Having considered the respective submission the point which emerges for consideration is whether an amendment application at the instance of the co-plaintiff is maintainable. 8. 7. Having considered the respective submission the point which emerges for consideration is whether an amendment application at the instance of the co-plaintiff is maintainable. 8. The pleading is defined in Order 6 Rule 1 to mean the plaint and the written statement whereas the Rule 2 of Order 6 provides that the pleading shall contain a statement in a concise form on a material fact on which the party pleading relies for his claim or defence. 9. Order 6 Rule 17 of the Code permits either party to alter or amend his pleading in such a manner and on such terms as may be just for the purpose of determining the real questions in controversy between the parties. 10. Order 1 Rule 1 of the Code permits several persons to be joined in one suit as plaintiffs where any right to relief in respect of or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons whether jointly, severally or in alternative. Rule 4 of Order 1 enables the Court to pass judgment without any amendment for one or more of the plaintiffs as may be found entitled to relief. 11. Therefore, on conjoint reading of the aforesaid provisions several persons can be joined as plaintiffs where the relief sought for arises from same transaction or series of set of facts or series of acts or transactions whether jointly or severally. Therefore, if several reliefs are claimed where one of the relief could be granted to one of the plaintiffs and others to the remaining plaintiffs, the said suit cannot be said to be not maintainable on the score of non entitlement of whole of the relief by the other set of the plaintiffs. The position is clear that there is no difficulty in filing a plaint by the several plaintiffs for espousing the individual relief if the same arises from the same set of facts or transactions. 12. The point hinges whether one of the co-plaintiffs can alter the pleading by way of an amendment. 13. The position is clear that there is no difficulty in filing a plaint by the several plaintiffs for espousing the individual relief if the same arises from the same set of facts or transactions. 12. The point hinges whether one of the co-plaintiffs can alter the pleading by way of an amendment. 13. This Court in case of Sardindu Sekhar Banerjee (Supra) was poised with the question whether “either party” under Order 6 Rule 17 of the Code would mean whole set of the plaintiffs and whole set of the defendant or it could be co-plaintiff or the co-defendant an it is observed : “The case of the petitioner is that Opposite Parties Nos. 1 and 2 hold two dar-patnis under him. It appears from the written statement that the case of opposite parties nos. 1 an 2 is that opposite party o. 2 has no longer any interest in the holdings and there is a further case that they have been amalgamated. The Rule is opposed by opposite party no. 1. I decline to express any opinion whatever on the questions raised with regard to the merits of the plaintiff’s suit or difficulties which may await him in obtaining a decree. The only matter with which I am concerned, in this Rule, is whether the prayer for amendment ought to have been allowed. Mr. Bose contended that the court has no jurisdiction to allow the amendment of a plaint on a prayer by one or some of a body of plaintiffs. In the case of Nalinakha Sinha Vs. Ram Taran Pal the learned Judges said that they had some doubt. That is certainly not a decision on the point. In order to give effect to this contention it would have to be held that the words “either party” in Order 6 Rule 17 mean the whole of the plaintiffs or the whole of the defendants. Obviously such a construction could not be applied to the defendants. There is nothing to prevent them from filing mutually inconsistent written statements. I am therefore, of opinion that the court has jurisdiction to allow an amendment which is not prayed for by all the plaintiffs. Obviously, however, no court would allow an amendment which would lead to inconsistent cases. Obviously such a construction could not be applied to the defendants. There is nothing to prevent them from filing mutually inconsistent written statements. I am therefore, of opinion that the court has jurisdiction to allow an amendment which is not prayed for by all the plaintiffs. Obviously, however, no court would allow an amendment which would lead to inconsistent cases. If a plaint contained an averment that a certain document was a genuine one, the plaintiff would obviously be not allowed amend the plaint by an averment that it was fictitious. That, however, dos not mean that the court has no jurisdiction to allow a prayer in suitable cases.” 14. It is deducible from the said report that one of the plaintiff can file an application for amendment but the averment sought to be incorporated should not be inconsistent with the original pleading. Although the Court in the said report held that the amendment at the instance of one of the plaintiff is maintainable but further observed that it may be that the other plaintiffs may support the said amendment. In the instant case the opposite party No. 2 was originally arrayed as the defendant but was subsequently transposed to the category of the co-plaintiff. If such transposition embarrasses the opposite party No. 1, the original plaintiff would not have accepted such transposition readily. 15. Applying the law enunciated in the above noted report if the proposed amendment does not bring any inconsistency with the original pleading and does not alter the basic structure of the pleading such amendment at the instance of the co-plaintiff is permissible. 16. Therefore, the relief for declaration as to invalidation of the deed of gift cannot be said to be inconsistent with the rest of the pleading made in the plaint. 17. Thus, in absence of any inconsistency such amendment application should not be thrown as has been taken out by the co-plaintiffs. 18. In spite of the service the original plaintiff i.e. opposite party No. 1 herein did not appear before this Court and it might be that he may ultimately support the said amendment petition. 19. On the basis of the discussion made above, this Court does not find any illegality and infirmity in the impugned order. 20. The revisional application is, thus, dismissed. 21. There shall be no order as to costs. 22. 19. On the basis of the discussion made above, this Court does not find any illegality and infirmity in the impugned order. 20. The revisional application is, thus, dismissed. 21. There shall be no order as to costs. 22. Urgent photostat certified copy of this judgment, if applied for, be given to the parties on priority basis.