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2013 DIGILAW 508 (CAL)

S. K. Akbar Ali v. S. M. Gayatri Ghosh

2013-07-26

PRASENJIT MANDAL

body2013
Judgment :- Prasenjit Mandal, J. Challenge is to the Order dated May 30, 2013 passed by the learned Civil Judge (Junior Division), 5th Court, Howrah in Title Suit No.118 of 2006 thereby rejecting an application for amendment of the plaint. The plaintiff/petitioner herein instituted the aforesaid suit for permanent injunction and damages praying for a decree of permanent injunction restraining the defendant from transferring or encumbering or making over possession of the suit property to anybody else in any manner whatsoever and other consequential reliefs. During the pendency of the suit, the plaintiff filed the said application for amendment of the plaint incorporating the relief of specific performance of contract directing the substituted defendants to execute and register the deed of conveyance in terms of the deed of agreement dated March 15, 2003 and subsequent extended deed dated March 20, 2005 in favour of the plaintiff in respect of the suit property with delivery of possession thereof. That application was rejected by the impugned order. Being aggrieved, the plaintiff/petitioner herein has preferred this application. Now, the question is whether the learned Trial Judge is justified in rejecting the prayer for amendment of the plaint. Having heard the learned Counsel for the parties and on going through the materials on record, I am of the view that the learned Trial Judge has committed a wrong in rejecting the application for amendment of the plaint. The fact that an agreement was held for sale of immovable property by an agreement dated March 15, 2003 and the extended deed dated March 20, 2005 between the plaintiff and the original defendant is not a new thing in the subject matter of amendment and the plaint lays down such averments in support of the contention of the agreement for sale in respect of the suit property as described in the plaint. Not only that the plaint lays down that the original defendant no.1 was all along willing to execute and register the sale deed in respect of the suit property in favour of the plaintiff and accordingly, he received a cheque of Rs.3,00,000/- from the plaintiff. Subsequently, as per plaint case, a dispute arose as to the price as a third party intended to purchase the said suit property at a high price and in fact, such third party filed an application for addition of party, which was allowed. Subsequently, as per plaint case, a dispute arose as to the price as a third party intended to purchase the said suit property at a high price and in fact, such third party filed an application for addition of party, which was allowed. After the death of the original defendant no.1, his heirs have been substituted and after the death of such third party, his heirs also have been substituted in the said suit. After the appearance in the said suit, the heirs of the substituted defendant no.1 decline to execute the deed and as such, the plaintiff sought for amendment of the plaint on the basis of the averments already made in the plaint. The prayer for amendment is for incorporation of the relief for specific performance of contract as per the deeds of agreement referred to earlier. While rejecting the said prayer, the learned Trial Judge has observed that the proposed amendment, if allowed, would cause the Forum of trial for increase of the value of the land to the tune of Rs.3,00,000/-, i.e., beyond the peculiar jurisdiction of the learned Trial Judge and the fact that the amendment is barred by limitation according to Article 54 of the Limitation Act. Mr. Hiranmoy Bhattacharya, learned Advocate appearing for the petitioner, has referred to the decision of Ragu Thilak D. John v. S. Rayappan & ors. reported in (2001) 2 SCC 472 and thus, he has submitted that the dominant purpose of amendment is to minimise the litigation and so, the relief sought for by way of amendment should have been allowed. The question if the said relief is barred by limitation shall be kept open for decision of the same at the subsequent stage. But, amendment should still be allowed and the disputed matter shall be made the subject matter of an issue. On the other hand, Mr. Haradhan Banerjee, learned Advocate for the opposite parties, has referred to the decision of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) v. Ramesh Chander & ors. reported in AIR 2011 SC 41 and thus, he has submitted that when a suit is for declaration of title and injunction, the omission to claim the relief of specific performance of agreement for sale would be a bar after lapse of 11 years of filing of the suit in view of the limitation under Article 54 of the Limitation Act. With due respect to him, I am of the view that this decision is not applicable in the instant case, as in that case, there was an acquisition proceeding over the said land under the Land Acquisition Act and the provisions of the Ceiling Act, the appellant could not have prayed for specific performance of contract earlier. In that decision, it was also held that inclusion of the relief for specific performance of contract by way of amendment would virtually alter the character of the suit, and raise the pecuniary jurisdiction of the Court and the plaint had to be transferred to a different court. But, in the instant case, the fact of the agreement for specific performance of contract is not a new contention at all and the plaintiff has described in the plaint that the original defendant was ready and willing to perform the contract all along and when it was found that a third party was interested in the suit property and in fact, such a third party has filed another suit, the application under Order 1 Rule 10 of the C.P.C. was allowed by the learned Trial Judge for proper adjudication for addition of such third party. So, the situation demanded the specific performance of contract. So, in the instant case, the facts are quite different from the one in Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (supra). So far as exclusion of the jurisdiction is concerned, in my view, if amendment is permissible, it should be decided without looking into the consequence whether the amendment would cause the change of forum. After amendment, if it is found that the jurisdiction is to be changed, appropriate steps may be taken for return of the plaint to the plaintiff for filing before the appropriate Court. So far as the limitation is concerned, Mr. Haradhan Banerjee has drawn my attention to the paragraph nos.33, 35, 36 & 37 of the said decision ( AIR 2011 SC 41 ) and submitted that after the lapse of the period of limitation as indicated in Article 54 of the Limitation Act, such amendment is not permissible. So far as the limitation is concerned, Mr. Haradhan Banerjee has drawn my attention to the paragraph nos.33, 35, 36 & 37 of the said decision ( AIR 2011 SC 41 ) and submitted that after the lapse of the period of limitation as indicated in Article 54 of the Limitation Act, such amendment is not permissible. In the instant case, under the altered situation after the death of the original defendant no.1, the plaintiff had to seek the relief for amendment of the plaint in view of the fact that the heirs of the original defendant are not to give due honour of the agreement executed by their predecessor-in-interest. The decision of Raghu Thilak D. John (supra) clearly indicates that amendment may be allowed to minimise the litigation. If after the amendment, the dispute becomes the subject matter of the litigation, such amendment should be allowed for settlement of the dispute once for all and in that case, if the question of limitation which is practically based on fact and law could be kept upon for decision at the time of the trial of the suit as recorded in the said Raghu Tilak D. John case (supra). The decision of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (supra) was delivered by the Division Bench and the Raghu Tilak D. John (supra) was also delivered by the Division Bench but there is no indication in the decision of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (supra) that the earlier decision of Raghu Tilak D. John (supra) was taken into consideration. Mr. Banerjee has also referred to the decision of Raheja Constructions Ltd. v. Alliance Ministries & ors. reported in AIR 1995 SC 1768 and thus, he has submitted that the subsequent amendment for specific performance of contract is not tenable in view of the fact that the plaintiff has expressed admission in the plaint that the defendants have refused to abide by the terms of contract for specific performance. But, in the instant case, the plaint lays down that the original defendant no.1 was all along ready and willing to perform the specific performance of contract. Therefore, the facts of this decision are completely different from the present one. So, this decision will not be applicable in the instant case. Similarly, Mr. But, in the instant case, the plaint lays down that the original defendant no.1 was all along ready and willing to perform the specific performance of contract. Therefore, the facts of this decision are completely different from the present one. So, this decision will not be applicable in the instant case. Similarly, Mr. Banerjee has referred to the decision of Ratan Chand Khanna v. Mahendra Kumar reported in AIR 1979 Calcutta 55 and submitted that the Court lacking pecuniary or territorial jurisdiction to entertain a suit will not be competent to allow the amendment of the plaint. With due respect to Mr. Banerjee, I hold that this decision also will not be applicable in the instant case inasmuch as in that case the Court was lacking pecuniary or territorial jurisdiction to entertain the suit initially. But, in the instant case, the Court has the jurisdiction to entertain the suit on the basis of relief sought for in the plaint and subsequently, under the changed circumstances, the plaintiff has sought for the relief of specific performance of the contract. So, the facts of the two cases are not similar at all. Rather this case is contrary to the fact stated in the case of Ratan Chand Khanna (supra). So, this decision will not also be applicable. Lastly, Mr. Banerjee has also referred to the decision of Mst. Zohra Khatoon v. Janab Mohammad Jane Alam & ors. reported in AIR 1978 Calcutta 133 and submitted that where the Court is inherently lacking jurisdiction to entertain the suit, it cannot make the order for amendment to bring the suit within its jurisdiction. This decision is akin to the decision of Ratan Chand Khanna (supra). So, in my view, this decision too will not be applicable in the instant case. In that view of the matter, I am of the opinion that the impugned order cannot be sustained. The learned Trial Judge has committed material irregularity in rejecting the prayer for amendment. He has also failed to exercise the jurisdiction properly. The impugned order is not justified at all. Accordingly, I am of the view that this application succeeds and is, therefore, allowed. The impugned order is hereby set aside. The application for amendment of the plaint appearing as Annexure-D at page no.51(A) stands allowed. The learned Trial Judge shall proceed with the suit from that stage, in accordance with law. The impugned order is not justified at all. Accordingly, I am of the view that this application succeeds and is, therefore, allowed. The impugned order is hereby set aside. The application for amendment of the plaint appearing as Annexure-D at page no.51(A) stands allowed. The learned Trial Judge shall proceed with the suit from that stage, in accordance with law. The issue whether the relief for specific performance of contract is barred under Article 54 of the Limitation Act is kept open for decision at the time of the trial of the suit. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.