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2014 DIGILAW 905 (CAL)

Sufal Mathur v. Basudev Sardar @ Durlav

2014-09-17

SAHIDULLAH MUNSHI

body2014
Judgment : Sahidullah Munshi, J. This revisional application at the instance of the plaintiff/petitioner is directed against Order No.21 dated June 29, 2011 passed by learned Civil Judge (Junior Division) 3rd Court, Krishnagar, Nadia in Title Suit No.43 of 2009 rejecting the petitioner’s application under Order 6 Rule 17 of the Code of Civil Procedure and also an application made under Order 1 Rule 10(2) of the said Code. The plaintiff/petitioner herein filed a suit being Title Suit No.43 of 2009 in the Court of the learned Civil Judge (Junior Division) 3rd Court, Krishnagar at Nadia against the opposite parties praying for a decree for declaration that the plaintiffs are co-owners in possession of the property in suit; that a decree for Khas possession be passed against the defendants evicting them from the suit property; that a decree be passed for mandatory injunction against the defendants to demolish the unauthorized additional construction illegally done by defendants and that a decree be passed for all costs of the suit. The suit property as it appears from the Schedule of the Plaint is 10 decimals of land out of 92 decimals fenced by Katcha and split up bamboos over which the disputed homestead is situated at Plot No.221 under Khatian No.557. In support of the plaint case the plaintiff, inter alia, stated in paragraph 2 that the suit property originally belonged to Panchu Mathur. He used to possess the property raising his homestead thereon. In his name R.S. R-O-R was duly prepared and he paid rent to the State of West Bengal and got receipts there for. Panchu died leaving behind him surviving his only son, Sagar Mathur, who also used to reside over the property in suit. Paragraph 2 of the plaint is reproduced below: “2. That the suit property originally belonged to Panchu Mathur. He used to possess the property raising his homestead thereon. In his name R.S. R-O-R was duly prepared and he paid rent to State of West Bengal and got receipts therefrom. Paragraph 2 of the plaint is reproduced below: “2. That the suit property originally belonged to Panchu Mathur. He used to possess the property raising his homestead thereon. In his name R.S. R-O-R was duly prepared and he paid rent to State of West Bengal and got receipts therefrom. Thereafter Panchu died leaving behind his only son Sagar Mathur who also used to reside over the property in suit.” It is the further plaint case that Sagar Mathur and Monmotho Sardar respectively the predecessors of the plaintiff and the defendants herein knew each other and out of their good relationship Monmotho having approached Sagar, he allowed Monmotho to live at a portion of the homestead standing over the suit property belonging to Sagar. It was the understanding between Sagar and Monmotho that Monmotho would quit and vacate the suit property after or within 5 years but he did not do so and Monmotho also died. After the death of Monmotho his sons, the present defendants, again prayed for time from Sagar to allow them to stay over the suit property for a further period of 5 years, which was allowed out of pity and sympathy. Although, commitment was made by the defendants, they did not vacate the premises as a result whereof, the plaintiffs being the successors in interest of Sagar Mathur, have filed the present suit for eviction of defendants/licensees and prayed for Khas possession from the said defendants. The suit proceeded. Defendants filed their written statement and they have denied the plaint case. In paragraph 10 of the written statement the defendants have asserted that they have acquired a statutory right by adverse possession in respect of 5 sataks of land. As they assert in their own right and to have possessed the land for more than 12 years to the plaintiff’s knowledge continuously and that plaintiffs are not in actual possession of the suit plot which is in possession of the defendants and the plaintiffs have their possession on non suit Plot No.220. The case of the defendants that the plaintiffs upon keeping their possession of Plot No.220 also want possession of the suit Plot No.221 simply on the basis of the wrong record published during R.S. operation and they prayed for dismissal of the suit. The case of the defendants that the plaintiffs upon keeping their possession of Plot No.220 also want possession of the suit Plot No.221 simply on the basis of the wrong record published during R.S. operation and they prayed for dismissal of the suit. The plaintiffs have filed an application under Order 6 Rule 17 of the Code of Civil Procedure praying for certain amendment thereby deleting paragraph 2 of the Plaint and instead he seeks incorporation of a new paragraph in tune with the earlier pleading except that they are now in possession of the Record-of-Rights. The new paragraph sought to be incorporated has been mentioned in the Schedule of the amendment application being Annexure “C” to this revisional application. The proposed amendment sought to be made by the plaintiff is quoted below: “Amendment sought for: i) Para 2 of the plaint is to be deleted. In its place the following statements are to be inserted : ‘That the suit property originally belonged to C.S. recorded tenant Subal Chandra Mathur, Panchu Methur, Ashu Methur, Purna Chandra Mathur, Amulya Methur. Subal Chandra Methur, Ashu Methur, Purna Chandra Methur, Amulya Methur died leaving no heir. Their shares devolved upon their only living brother Panchu Methur. Panchu began to reside over the suit property along with his family members. Thereafter Panchu died leaving behind his only son, Sagar who inherited the entire property of Panchu and began to live in the said homestead left by the said Panchu Methur. At the time of R.S. operation 61 decimals of land was erroneously recorded in the name of Sagar and rest portion who recorded in the name of one Radha Rani Dasi and Bhagabati Dasi, though Radha Rani and Bhagabati never possessed the suit property. Subsequently L.R. R-O-R was published and the entire area of the suit plot was recorded in the name of Sagar Methur. He paid rent to the State of West Bengal, got receipts therefrom. Due to his uninterrupted possession over the suit property for a continuous period of more than 50 years openly, adversely with the knowledge of the defendant and other, an additional statutory right evolved in his favour. Radha Rani and Bhagabati, had no interest over the suit property. Bhagabati is dead but for proper adjudication of the case, Radha Rani and so of Bhagabati, have been impleaded as pro-defendants in this case. Radha Rani and Bhagabati, had no interest over the suit property. Bhagabati is dead but for proper adjudication of the case, Radha Rani and so of Bhagabati, have been impleaded as pro-defendants in this case. The Methurs are also known as Mathur.” ii) In the Schedule of the plaint before “557”, “L.R.” is to be inserted. Thereafter, “R.S. 212, 438” are to be inserted. Thereafter “C.S. 212” is to be inserted.” In respect of such proposed amendment the plaintiff has put forth a reason that he could not make any attempt for the said amendment earlier because only recently the plaintiffs have got certified copies of the Record-of-Rights and at the time of filing of the suit due to non-availability of those papers the facts which ought to have been incorporated in the original plaint, could not have been inserted and as such, for the purpose of effective trial it is necessary for the plaintiffs to seek for amendment of the Plaint by incorporating the proposed paragraph mentioned in the Schedule of the amendment application. According to the plaintiff, the amendment sought for is very formal in nature and if the same is allowed it will not change the nature and character of the present suit. The plaintiffs also filed an application under Order 1 Rule 10 of the Code of Civil Procedure for adding one Radha Rani Dasi and Chatur Biswas as proforma defendant Nos.4 and 5 in the cause title of the Plaint. The defendant/opposite parties have filed their objection to both the aforesaid applications filed by the plaintiff and opposed the prayer made by the plaintiffs either for amendment of the Plaint or for addition of the proforma defendant Nos.4 and 5. The defendant/opposite parties have filed their objection to both the aforesaid applications filed by the plaintiff and opposed the prayer made by the plaintiffs either for amendment of the Plaint or for addition of the proforma defendant Nos.4 and 5. Both the aforesaid applications filed by the plaintiffs for amendment and addition of party were taken up by the learned Court below and by the order impugned those were rejected holding, inter alia, that – i) there is no subsequent events to be inserted in pleadings, ii) already cross-examination of the plaintiff’s witness has been done on paragraph 2 of the plaint which is proposed to be deleted and/or substituted by way of amendment and iii) it cannot be said that the documents submitted at the belated stage were not at all available and that provisions of CPC after amendment in 2002 specify submission of documents positively before preemptory hearing, iv) the proposed amendment, although, in form, will alter the plaint case as a whole and as a consequence whereof the defendants will suffer for rebuttable evidence. On the aforesaid ground the learned Court below has rejected the application for amendment. In support of his submission to allow the prayer for amendment of the plaint Mr. Bhattacharya, learned Counsel, has relied upon the following reported judgments – a) (2006) 6 SCC 498 (Baldev Singh & Ors. –Vs. – Manohar Singh & Anr.), b) (2007) 5 SCC 602 (Usha Balashaheb Swami & Ors. – Vs. – Kiran Appaso Swami & Ors.), c) (2001) 2 SCC 472 (Ragu Thilak D. John – Vs. – S. Rayappan & Ors.) and d) (2010) 4 WBLR (Cal) 435 (Smt. Promila Halder & Anr. – Vs. – Sri Kumaresh Mondal @ Bhabesh Mondal) Mr. Bhattacharya relies on paragraph 8 and paragraph 17 of the said report of Baldev Singh (supra) which precisely says that Court should be extremely liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. In paragraph 17 it has been clarified by the Hon’ble Apex Court that commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in a limited sense meaning thereby the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. In paragraph 17 it has been clarified by the Hon’ble Apex Court that commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in a limited sense meaning thereby the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. Paragraphs 17, 18 and 19 of the judgment in the case of Usha Balashaheb Swami & Ors. (supra) the Hon’ble Apex Court has held that Court is conferred with power at any stage of the proceedings to allow alteration and amendments of pleadings, if it is of the view that such amendments would be necessary for determining the real question in controversy between the parties. It has been further held that proviso to Order 6 Rule 17 of the Code of Civil Procedure, however, provides that no application for amendment shall be allowed after trial has commenced unless of course the Court comes to a conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. The Apex Court has held that amendment of pleadings cannot be allowed so as to materially alter or substitute cause of action or the nature of claim applies to amendments to Plaint. This report of Usha Balasaheb Swami & Ors. had occasion to consider the report of Baldev Singh (supra). The report in the case of Ragu Thilak D. John (supra) the Hon’ble Apex Court held that amendment sought would not be declined. It has been further held that dominant purpose of allowing the amendment is to minimize the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case and that the plea of alteration, being disputed, could be made a subject-matter of the issue after allowing the amendment prayed for. Lastly, the report in Smt. Promila Halder & Anr. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case and that the plea of alteration, being disputed, could be made a subject-matter of the issue after allowing the amendment prayed for. Lastly, the report in Smt. Promila Halder & Anr. (supra) this Hon’ble Court in paragraphs 2, 4 and 6 has held that at the examination-in-chief under Order 18 Rule 4 of the Code of Civil Procedure, while tendering documents showing statements to different persons objections were raised on behalf of the petitioners in the said case and consequent thereto the opposite party in the said case filed an application under Order 6 Rule 17 of the Code of Civil Procedure for amending his plaint for complete adjudication of the matter and the report shows that proviso to Order 6 Rule 17 would not be a bar taking into consideration that commencement of trial should be construed in a limited sense meaning thereby the final hearing of the suit, examination of witnesses, filing of documents in absence of arguments. This judgment was delivered also upon consideration of Baldev Singh (supra). Even paragraph 17 of the aforesaid report of Baldev Singh has been quoted in the said report of Smt. Promila Halder & Anr. Mr. Partha Pratim Roy, learned Counsel, appearing for the defendant/opposite party, has seriously disputed the case made out by the plaintiff/petitioner. Mr. Roy submits that the application for amendment is not at all maintainable. The same not only alters the nature and character of the suit but also no justification has been shown in support of such amendment as sought for by the plaintiff. Mr. Roy has submitted that if the amendment is allowed the cause of action for the suit will be changed, so much so that the suit filed for eviction of licensee would stand converted to a suit for eviction of a trespasser because the defendant has already made out a case that they have acquired title by adverse possession in the suit plot which is not in possession of the plaintiffs. Mr. Roy has relied on two judgments, namely, i) (2013) SC 3693 and ii) AIR 2009 SC 1433 . By the case reported in AIR 2013 SC 3693 Mr. Mr. Roy has relied on two judgments, namely, i) (2013) SC 3693 and ii) AIR 2009 SC 1433 . By the case reported in AIR 2013 SC 3693 Mr. Roy, relying on paragraph 17, has stated that if the amendment of paragraph 2 of the plaint is allowed as sought for, will tantamount to withdrawal of admission made by the plaintiff. I have gone through the said judgment and particularly paragraph 17 thereof. In that case, Order 6 Rule 17 application was not allowed and held to be not entertainable on the ground that on an earlier occasion the defendants filed applications seeking to change their stand and only by changing the label of the petition they again filed an application under Order 6 Rule 17 of the Code of Civil Procedure and precisely that is the reason the Hon’ble Apex Court rejected the application for amendment of written statement under the provisions of Order 6 Rule 17. Paragraph 17 of the judgment highlighted that – 1) proposed amendment should not result in injustice to either side, 2) any admission made in favour of the plaintiff should not be withdrawn and 3) inconsistent and contradictory allegations which negate admitted facts should not be raised. None of the three criteria is available in the defence taken by the defendant/opposite parties in the present case. The referred case was one for amendment of written statement where question of admission by defendants could arise. In the present case, however, no such admission has been made which would consequentially be affected, if such amendment is allowed, or the defendant will be prejudiced. Therefore, the said judgment is not applicable in the facts and circumstances of the present case. Mr. Roy, relying upon paragraphs 12 and 14 of the judgment reported in AIR 2009 SC 1433 , has submitted that the amendment should be rejected but on perusal of those two paragraphs it appears that the Hon’ble Apex Court has rather clarified that the bar under proviso to Order 6 Rule 17 of the said Code would not be applicable in the present case. The Hon’ble Apex Court in paragraph 12 has held that trial would not deem to have commenced on the date of first hearing. Paragraph 12 of the said judgment is quoted below: “12. Reliance, however, has been placed by Mr. The Hon’ble Apex Court in paragraph 12 has held that trial would not deem to have commenced on the date of first hearing. Paragraph 12 of the said judgment is quoted below: “12. Reliance, however, has been placed by Mr. Suri on Baldev Singh and Others v. Manohar Singh and Another { (2006) 6 SCC 498 }, wherein it was opined : “17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC provides that amendment of pleadings shall not be allowed when the trial of the suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the suit. From the record, it also appears that the suit was not on the verge of conclusion as found by the High Court and the trial court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which confers wide power and unfettered discretion to the court to allow an amendment of the written statement at any stage of the proceedings.” It is not an authority for the proposition that the trial would not deemed to have commenced on the date of first hearing. In that case, as noticed hereinbefore, the documents were yet to be filed and, therefore, it was held that the trial did not commence.” In paragraph 14 the Hon’ble Apex Court has held that it would be the formal duty of the Court to decide as to whether an amendment is necessary to decide the real dispute between the parties and only if such condition is fulfilled the amendment is to be allowed. In my view paragraph 14 of the said judgment supports the case of the plaintiffs because the question is whether amendment is necessary to decide the real dispute between the parties. In my view paragraph 14 of the said judgment supports the case of the plaintiffs because the question is whether amendment is necessary to decide the real dispute between the parties. In the present case, I hold that the real dispute between the parties could be decided only if the amendment is allowed and further litigations could be avoided. That being the case I am unable to agree with Mr. Roy as submitted in support of rejection of the application for amendment. It may not be out of context to mention here that even the Civil Procedure Code provides for recall and examination of a witness under the provisions of Rule 17 of Order 18. Rule 17 authorizes the Court to recall any witness at any stage of the suit if such witness has been examined. Order 18 Rule 17 is quoted below: “Order 18 Rule 17. Court may recall and examine witness – The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence for the time being in force) put such question to him as the Court thinks fit.” In consideration of the above provisions the apprehension expressed by the learned Judge that examination of the plaintiff on paragraph 2 of the plaint, has been completed, is without any basis. In the context of the above-mentioned decisions cited by Mr. Bhattacharya and the propositions laid down thereunder, it can be held that the learned Trial Judge has committed gross error in law in disallowing the plaintiffs to amend their plaint. So far the opinion expressed by the learned Judge that there was no subsequent event, the learned Court below was wrong in failing to appreciate that the petitioner/plaintiff averred in his application for amendment that Record-of-Rights were not available earlier and as such, being subsequently procured, he has no other alternative but to produce those documents and to incorporate necessary amendments in paragraph 2 of the plaint which states about the Record-of-Rights in respect of the suit land. The observation made by the learned Court below that since cross-examination of the plaintiff’s witness has already been done in respect of paragraph 2 the proposed amendment cannot be allowed, is unjustified and untenable in law. The observation made by the learned Court below that since cross-examination of the plaintiff’s witness has already been done in respect of paragraph 2 the proposed amendment cannot be allowed, is unjustified and untenable in law. The Civil Procedure Code no doubt provides under Order 7 Rule 14 that where a plaintiff sues upon a document or relies upon a document in his possession should produce it in Court when the plaint is presented and shall, at the same time, deliver the document and a copy thereof to be filed with the plaint in the present case. Since it has been submitted by the plaintiff that Record-of-Rights could not be obtained at the time of filing the documents and since it has been procured now, he should be allowed to produce his documents and if necessary, the pleadings may be allowed to be amended. The learned Court below, while rejecting the application for amendment on ground that cross-examination of the PW 1 has already been completed on paragraph 2 is wrong, because, he has not taken note of the provisions of Order 7 Rule 14(3) which has been incorporated under the Civil Procedure Code Amendment Act, 2002. On a comparative study of the newly incorporated sub-Rule 3 and the old sub-Rule, it will clarify the position. The new sub-Rule says that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, without the leave of the Court be received in evidence on his behalf at the hearing of the suit. This provision clearly says that a party in seeking leave of the Court to produce a document at the time of evidence and to enable such production, if necessary amendment is required to be undertaken, the plaintiff should be allowed to undertake such amendment whereas under the old sub-Rule 3 this part relating to grant of leave was not available. This provision clearly says that a party in seeking leave of the Court to produce a document at the time of evidence and to enable such production, if necessary amendment is required to be undertaken, the plaintiff should be allowed to undertake such amendment whereas under the old sub-Rule 3 this part relating to grant of leave was not available. The old sub-Rule is quoted below: “3...Where a document or a copy thereof is not filed with the plaint under this rule, it shall not be allowed to be received in evidence on behalf of the plaintiff at the hearing of the suit.” The learned Judge was also in error in holding that the document submitted by the plaintiff is at a belated stage and he has failed to explain the situation. In my opinion, the plaintiff has sufficiently explained as to the reason for amendment sought for. The learned Court below is also not correct to hold that if the amendment is allowed the same will alter the nature and character of the suit because of the fact that the plaintiff, although, seeks amendment of paragraph 2, by adding a new paragraph, it substantially remains the same and more particularly when no amendment has been sought for, to alter any of the prayers in the plaint consequent to such amendment. This being the position, I do not agree with the views taken by the learned Court below and I hold that the learned Judge has acted illegally and with material irregularities in rejecting the plaintiff’s application for amendment. Accordingly, the order impugned is set aside. The application for amendment of plaint is hereby allowed. The plaintiff shall file amended plaint in the Court below within 15 days from the date of obtaining certified copy of this judgment. The learned Court below shall allow the defendants to file additional written-statement within a reasonable period of time. The revisional application stands allowed. There will be no Order as to costs. So far the application filed by the plaintiff under Order 1 Rule 10(2) for addition of Radha Rani Dasi and Chatur Biswas I hold that they are necessary and proper parties and they should be added as defendants, inasmuch as, they have got some portion of the land recorded in their name and in order to avoid all future complications the suit should be decided in their presence. Accordingly, the Order rejecting the petitioner’s application under Order 1 Rule 10(2) is also set aside and, consequently, the application filed by the plaintiff under Order 1 Rule 10(2) is allowed.