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2012 DIGILAW 236 (CAL)

Jayasri Guha v. Sukla Ghosh

2012-03-21

HARISH TANDAN

body2012
Judgment Harish Tandon, J. 1. THIS revisional application is directed against the order dated 25.5.2011 passed by the learned single Judge (Senior Division), 10th Court, Alipur in Title Suit No. 2230 of 2008 by which an application for amendment of the written statement was rejected. 2. THE plaintiff/opposite party filed the aforesaid-mentioned Title Suit for partition upon declaration of their share. THE case made out in the plaint is that the parties to the suit are the joint owners of all that the premises No. 1/1 and 1/2 Hindustan Park Road, Kolkata - 700 019. THE said premises was initially owned by one Narayan Chandra Ghosh who built the two-stories building on premises No. 1/2 Hindustan Park Road and kept the premises, No. 1/1 Hindustan Park Road as vacant. THE said owner died in the year 1958 leaving his mother Provanani Debi, his widow Bina Ghosh, the original defendant No.1, son Dipak Ghosh and a daughter Smt. Jayasri Guha (Nee Ghosh), the defendant No.2. Each of the aforesaid heirs inherited the property left by the said deceased in equal proportion i.e. undivided 1/4 share each. THE said son who was unmarried subsequently died and his share devolved upon his mother that is the original defendant No. 1 and she became the owner of the 1/2 share in respect of the suit property. Upon the death of Provanani Debi her undivided a share devolved upon her surviving son namely Hemchandra Ghosh and a granddaughter namely Jayasri Guha (Nee Ghosh), the defendant No.2. Upon the death of Hemchandra Ghosh his share devolved upon his widow and upon her death it further devolved upon the plaintiff being the widow of the pre-deceased son of the said Hemchandra Ghosh. THE plaintiff therefore claims to be the owner of undivided 1/8 share in respect of the suit property. 3. INITIALLY the said suit was institute by the plaintiff being the opposite party herein against the said Bina Ghosh, since deceased and the Jayasri Guha (Nee Ghosh) the petitioner herein but during the pendency of the suit the said original defendant No. 1 namely Bina Ghosh died and her share devolved upon the petitioner being the surviving daughter. 4. WHEN the original defendant No.1 was alive, joint written statements were filed by the said defendant and the defendant No.2 being the petitioner herein before the trial Court. 4. WHEN the original defendant No.1 was alive, joint written statements were filed by the said defendant and the defendant No.2 being the petitioner herein before the trial Court. A specific defence is taken in the said written statement that upon the death of the said Provanani Debi in the year 1973 her undivided share in respect of the suit property was reverted back to the original owner or his legal heirs namely the defendants therein. 5. THE suit was thereafter posted at the preemptory board and affidavit as to examine in chief was filed by the plaintiff/ opposite party on March 30, 2010: THE said witness was cross-examined by the defendants/petitioner and was ultimately discharged. Thereafter the defendant/petitioner filed her affidavit as to examination in chief and was discharged upon cross- examination by the plaintiff/petitioner on December 3, 2010. THE said witness who adduced evidence on behalf of the defendant/petitioner was recalled and was re-examined and subsequently a date was fixed for argument. 6. AT this stage an application for amendment of the written statement was filed by the defendant/petitioner seeking to amend the written statement. By the proposed amendment the defendant/petitioner tried to incorporate certain averments relating to the relinquishment of the right, title and interest by the said Provanani Debi in respect of the suit property. 7. WHILE opposing the said application, the plaintiff/opposite party took a specific objection that the admission made by the defendant/petitioner in the written statement cannot be withdrawn. It is further contended that after the closure of the evidence of the parties and at the argument stage, such amendment should not be allowed as it would reopen the entire issue. Lastly is stated that there is no explanation/reason given in the application for amendment relating to the due diligence as to why such amendment could be taken out before the commencement of the trial. 8. THE trial Court found that there is no reason assigned in the said application for amendment with regard to due diligence and held that the said application for amendment cannot be allowed being hit by the proviso to Order 6 Rule 17 of the Code. 9. ASSAILING the said order Mr. 8. THE trial Court found that there is no reason assigned in the said application for amendment with regard to due diligence and held that the said application for amendment cannot be allowed being hit by the proviso to Order 6 Rule 17 of the Code. 9. ASSAILING the said order Mr. Hirak Kumar Mitra, learned senior Advocate submits that the consideration by the Court in dealing with an application for amendment of the plaint is different than the amendment of the written statement and placed reliance upon a judgment of this Court rendered in case of Nrisingh Prosad Paul v. Steel Products Ltd. reported in AIR 1953 Cal 15 . He strenuously submits that the petitioner is not trying to withdraw the admission by the proposed amendment and the real test is whether the amendment is necessary to decide the dispute between the parties. He further submits that the Court while considering an application for amendment cannot go into the correctness or falsity of the case sought to be brought by way of an amendment and placed reliance upon a judgment of the Supreme Court in case of Rajes Kumar Agarwal v. K.K. Modi reported in AIR 2006 SC 1647 . By placing reliance upon a judgment of this Court in case of Sk. Abul Kalam v. Urnapada Maity reported in 2007 (2) CLJ 781 (Cal) he contends that the application for amendment can be allowed even at the stage of argument if such amendment is necessary for complete adjudication of the dispute in the suit. Lastly, he contends that although the admission cannot be withdrawn but can be sufficiently explained by way of amendment and placed reliance upon a Division Bench judgment of this Court in case of Sheo Prakash Kajaria and Ors. v. Shreelal Kajaria and Ors. reported in (2001)2 CUT 328. 10. PER contra, Mr. Ranjan Deb, learned senior Advocate appearing for the opposite party submits that the purpose for which the proviso to Order 6 Rule 17 of the Code of Civil Procedure was inserted by the Code of Civil Procedure (Amendment) Act 2002 is to minimize the amendment to be brought after the commencement of trial and placed reliance upon a judgment of the Supreme Court in case of Salem Advocate Bar Association v. Union of India reported in AIR 2005 SC 3353 . He further submits that pre-trial amendment should be allowed liberally than those which are sought to be made after the commencement of trial and placed reliance upon a judgment of the Supreme Court in case of Rajkumar Gurawara (through L.Rs) v. M/s S.K. Sarwagi and Co. Ltd. and Anr. reported in AIR 2008 SC 2303 . By contending that it is one thing to say that without resiling from an admission some clarification and/or explanation with regard to such admission is sought to be made by way of amendment than a withdrawal of an admission by way of an amendment and placed reliance upon a judgment of the Supreme Court in case of Gautam Sarup v. Leela Jetly and Ors. reported in (2008) 7 SCC 85 . 11. HAVING considered the respective submissions, it is undisputed that an application for amendment of the written statement is taken out after the closure of the evidence of the respective parties and at the stage of argument. It is also undisputed that the suit is filed after the commencement of the Code of Civil Procedure (Amendment) Act 2002. Therefore, there is no doubt that the proviso inserted to Order 6 Rule 17 of the Code applied with full rigour and force in respect of the instant proceeding. Prior to the commencement of the Code of Civil Procedure (Amendment) Act 2002 there was no proviso appended to Order 6 Rule 17 which provides that the parties may be allowed to amend their pleadings if the same is intended for the purpose of determination of the real disputes in the suit at any stage of the suit. 12. BY the Code of Civil Procedure (Amendment) Act 1999 the legislature deleted the provision of Order 6 Rule 17 of the Code but the same was reintroduced by the Code of Civil Procedure (Amendment) Act 2002 with the proviso inserted thereto. The re-introduction of Order 6 Rule 17 of the Code with the proviso inserted thereto was intended to curb the amendment of the pleadings once the trial has commenced. The reason is obvious that a party after the filing of their respective pleadings, discovery of documents and framing of the issues are made to aware as to the case which they have to meet out. The reason is obvious that a party after the filing of their respective pleadings, discovery of documents and framing of the issues are made to aware as to the case which they have to meet out. Introduction of the new and additional fact by way of amendment after the commencement of trial may sometimes result into a de novo trial and the suits are unnecessarily prolonged. The apex Court in case of Salem Advocate Bar Association (supra) in paragraph 27 held that the proviso to some extent curtails the absolute discretion to allow amendment at any stage in these words: "27. Order VI Rule 17 of the Code deals with amendment of pleadings. BY Amendment Act 46 of 1999, this provision was deleted it has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision." (Emphasis Supplied) 13. THE genuine and bona fide amendment shall always be permitted to be brought in the pleading at any stage of the suit but if the same is made out after the commencement of trial, the party seeking such amendment has to satisfy that in spite of due diligence he could not raise the matter before the commencement of trial. 14. MR. Mitra, by referring the amendment application, tried to impress upon the Court that there is a sufficient explanation incorporated in the said application for amendment which constrain the petitioner in not raising such dispute before the commencement of trial. The reason which is assigned in taking out the said amendment application at the argument stage is that during the cross-examination of the plaintiffs witness a plea of ouster was taken and certain documents to that effect have been filed. The reason which is assigned in taking out the said amendment application at the argument stage is that during the cross-examination of the plaintiffs witness a plea of ouster was taken and certain documents to that effect have been filed. It is further stated in the said application that due to inadvertence, a plea of relinquishment could not be incorporated in the written statement. 15. IN paragraph 10 of the written statement it is specifically averred that on the death of the Provanani Debi in the year 1973 her share reverted back to the original owner Narayan Chandra Ghosh or his legal heirs namely the defendants therein. Therefore, a specific case of reversion is made out in the written statement. Now, by the proposed amendment the defendant/petitioner tried to contend that the said Provanani Debi during her lifetime relinquished her share in favour of the defendants. The point of reversion and relinquishment are mutually destructive. If it is a positive stand taken that the interest in respect of the immovable property reverted to the original owner on the death of the reversioner then the question of relinquishment during her lifetime cannot stand side by side. 16. THERE is no quarrel to the proposition of law that the consideration of the Court while dealing the amendment of a plaint is different than the amendment of the written statement as has been held in case of Nrisingh Prosad Paul (supra). The Court should be more liberal in allowing an application for amendment of the written statement but should be cautious and vigilant at the time of considering an application for amendment of the plaint. It is also equally true that while considering the amendment of the pleading, be it a plaint or written statement, the Court shall not allow the amendment if the party is trying to withdraw the admission or such amendment is not necessitated to determine the disputes involved in the suit. Although the party cannot resile from the admission but can be permitted to clarify and/or explain the circumstances and/or extent of admission as has been held in case of Gautam Sarup (supra). It has been held that an inconsistent and alternative plea can be made in pleadings but cannot displace the plaintiff from the admission by the defendants in the written statement but such pleas cannot be mutually destructive to each other in these words:- "28. It has been held that an inconsistent and alternative plea can be made in pleadings but cannot displace the plaintiff from the admission by the defendants in the written statement but such pleas cannot be mutually destructive to each other in these words:- "28. What, therefore, emerges from the discussions made herein before is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other." 17. IN case of Sk. Abul Kalam (supra) the Court was dealing a matter relating to withdrawal of an admission by way of amendment and in the given facts of the said case it is held that the amendment which is inserted for complete adjudication of the dispute in the suit should be allowed by the Court as by such proposed amendment the plaintiff is not seeking to withdraw the admission but is keeping the same intact. However the effect of the proviso inserted to Order 6 Rule 17 of the Code was not argued and considered by the Court in the said decision. 18. THE Division Bench in case of Sheo Prakash Kajaria (supra) was dealing a matter relating to amendment of the written statement brought after 25 years from the date of filing of the written statement and a point was taken whether the admission made in the pleading can be allowed to be withdrawn by way of amendment. In paragraph 38 of the said report it is recorded that the appellants therein admitted the relinquishment of the share of her husband by writing a letter but by way of amendment wanted to explain the circumstances in which such letter was written. Admittedly in the present case there is no pleading as to the relinquishment of her share by the Provanani Debi during her lifetime. Therefore reliance on a decision without looking into its factual matrix has been cautioned by the apex Court in case of State of Orissa v. Md. Admittedly in the present case there is no pleading as to the relinquishment of her share by the Provanani Debi during her lifetime. Therefore reliance on a decision without looking into its factual matrix has been cautioned by the apex Court in case of State of Orissa v. Md. Illiyas reported in AIR 2006 SC 258 which has been relied upon by the Division Bench in case of Sheo Prakash Kajaria (supra) in paragraph 31 which reads thus:- "31. It is, thus, evident that in the case of M/s. Modi Spinning and Weaving Mills Co. Ltd. and Anr. (supra), no explanation was sought to be given in relation to the earlier statements and at the same time, there was no endeavour on the part of the defendant to allege any fraud, undue influence, coercion, fear, mistake, etc, which was the cause of the admission in the original statements. In the said case, the Supreme Court had no occasion to deal with the situation where a party wants to withdraw an admission earlier made due to fraud, undue influence, mistake or fear etc. that are available under the law of the land. It is now a settled law that a decision is authority of what it actually decides in a given fact. At this stage, it will not be inappropriate to refer to the following observations of the Supreme Court in the case of State of Orissa and Ors. v. Md. Illiyas (AIR 2006 SC) in laying down the law of precedent:- "Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not every thing said by a judge while giving judgment that constitutes a precedent. THE only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well- settled theory of precedents, every decision contains three basic postulates- (i) findings of material facts, direct and inferential. THE only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well- settled theory of precedents, every decision contains three basic postulates- (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. THE enunciation of the reason or principle on which a question before a Court has been decrded is alone binding as a precedent. (See : State of Orissa v. Sudhansu Sekhar Misra and Ors., (AIR 1968 SC 647) and Union of India and Ors. v. Dhanwanti Devi and Ors., (1996) (6) SCC 44). A case is a precedent and binding for what it explicitly decides and no more. THE words used by judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinen v. Leathern, (1901) AC 495 (HL), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides." 19. MR. Mitra put much emphasis on the plea that the evidence can only be looked by the Court if there is a pleading in support thereof and placed reliance upon a judgment of the Privy Council in case of Siddik Mohomed Shah v. Mt. Saran and Ors. reported in AIR 1930 PC 57. MR. Mitra put much emphasis on the plea that the evidence can only be looked by the Court if there is a pleading in support thereof and placed reliance upon a judgment of the Privy Council in case of Siddik Mohomed Shah v. Mt. Saran and Ors. reported in AIR 1930 PC 57. Even if it is considered that the petitioner was allowed to give evidence and in order to keep the same in parity with the pleading, an amendment is taken out, the petitioner has to overcome the further hurdle put forth in his way by way of insertion of proviso under Order 6 Rule 17 of the Code. By retaining the original provision contained under Order 6 Rule 17 of the Code, the legislature reintroduced the same with an insertion of proviso therein, the reason for which is apparent that even if the Court finds that amendment is necessary for determination of the disputes raised in the suit, the said amendment cannot be allowed if the same is taken out after the commencement of trial unless the Court comes to a conclusion that in spite of due diligence the party could not raise the matter before commencement of trial. The apex Court in case of Raj Kumar Guruwara (supra) made a distinction between the pre-trial amendment and the post-trial amendment in the following words:- "5. Originally, the appellant/plaintiff filed the suit for declaration of his exclusive right to do mining operation in the suit property. However, after impleadment of M/s. S.K. Sarwagi and Company as second defendant (first respondent herein) after closing of the evidence and during the course of argument the plaintiff filed an application under Order VI Rule 17 read with 151 CPC for amendment of the plaint praying for possession over the plaint schedule mentioned property form the defendants and for grant of damages of Rs.5.00 lacs in favour of the plaintiff for their mining operations without consent of the plaintiff in the plaint schedule property. Though the learned Additional District Judge allowed the application for amendment on payment of cost of Rs.300/- the High Court in a civil revision filed under Article 227 of the Constitution of India set aside the same and dismissed the application for amendment which is the subject matter in this appeal. Though the learned Additional District Judge allowed the application for amendment on payment of cost of Rs.300/- the High Court in a civil revision filed under Article 227 of the Constitution of India set aside the same and dismissed the application for amendment which is the subject matter in this appeal. In order to consider whether the appellant/plaintiff has made out a case for amendment of his plaint, it is useful to refer Order VI Rule 17 CPC which reads as under:- The first part of the rule makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings as may be necessary for the purpose of determining the real questions in controversy. However, this rule is subject to proviso appended therein. The said rule with proviso again substituted by Act 22 of 2002 with effect from 1.7.2002 makes it clear that after the commencement of the trial, no application for amendment shall be allowed. However, if the parties to the proceedings able to satisfy the Court that in spite of due diligence could not raise the issue before the commencement of trial and the Court satisfies their explanation, amendment can be allowed even after commencement of the trial. To put it clear, Order VI Rule 17 CPC confers jurisdiction on the Court to allow either party to alter or amend his pleadings at any stage of the proceedings on such terms as may be just. Such amendments seeking determination of the real question of the controversy between the parties shall be permitted to be made. Pretrial amendments are to be allowed liberally than those which are sought to be made after the commencement of the trial. As rightly pointed out by the High Court in the former case, the opposite party is not prejudiced because he will have an opportunity of meeting the amendment sought to be made. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event; it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso." 20. In the latter case, namely, after the commencement of trial, particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such event; it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso." 20. THEREFORE, there must exist a sufficient reason as to due diligence if an application for amendment is taken out after the commencement of trial even if the same is necessary for determination of the dispute in the suit. The trial Court did not find that there is any reasoned explanation given by the defendant/petitioner in the said application for amendment which this Court also finds that no reasoned explanation has been offered by the petitioner. 21. THEREFORE, this Court does not find any infirmity and/or illegality in the impugned order passed by the trial Court. 22. THE revisional application is, thus, dismissed. 23. HOWEVER, there shall be no order as to costs. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis. Revisional Application dismissed.