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Gauhati High Court · body

2015 DIGILAW 1162 (GAU)

Adbul Basid (MD) v. Nazrul Haque (MD)

2015-09-09

INDIRA SHAH

body2015
ORDER : 1. The order dated 30-09-2014 passed by the Munsiff, North Salmara Abhayapuri in T.S. No. 22 of 2006, whereby the learned Munsiff, rejected the prayer for amendment of the Plaint filed by the petitioner-plaintiff, has been challenged by filing this revision petition. 2. I have heard Mr. M.H. Talukdar, learned Counsel appearing for the petitioner and also heard Mrs. R. Choudhury, learned counsel appearing on behalf of the respondent Nos. 1 to 4. 3. The petitioner filed a suit praying for declaration of his right, title and interest in respect of a plot of land measuring 9 Bigha 0 Kata 6 Lecha and cancellation of sale deed dated 11-03-2003 and also for permanent injunction restraining the defendants from disturbing the peaceful plaintiff's possession of the land. 4. According to the petitioner, during the pendency of the suit, the defendants in violation of the order to maintain status quo of the suit land dispossessed the plaintiff from the suit land. Thereafter, the plaintiff filed an application for amendment of the plaint to bring on record the subsequent development and also to amend the Plaint by adding the prayer for delivery of khas possession of the suit land evicting the defendants and their men from the suit land. The defendants/opposite party filed objection wherein they contended that the suit land was in their possession and the allegation of dispossession is not true. The prayer of the plaintiff to amend the plaint when the case was posted for evidence cannot be entertained. 5. The learned Munsiff after hearing both the parties rejected the prayer for amendment of the plaint. The learned trial Court observed that the plaintiff-petitioner as P.W.1 admitted in his cross-examination that he was dispossessed on 11-01-2004, the suit was filed by the plaintiff on 21-01-2004 and at the evidence stage, the prayer for amendment has been made by the plaintiff that too, after 10 years of the alleged dispossession. 6. Learned counsel for the petitioner has submitted that under Order 6, Rule 17, pleadings can be amended at any stage, although, the proceeding had reached the evidence stage, the evidence in affidavit was yet to be filed. The delay in filing of the amendment petition was due to lack of proper legal advised of the engaged lawyer. 7. 6. Learned counsel for the petitioner has submitted that under Order 6, Rule 17, pleadings can be amended at any stage, although, the proceeding had reached the evidence stage, the evidence in affidavit was yet to be filed. The delay in filing of the amendment petition was due to lack of proper legal advised of the engaged lawyer. 7. Learned counsel cited the case of Ragu Thilak D. John vs. S. Rayappan and Others, (2001) 2 SCC 472 , wherein in Para 5 and 6, it has been observed as under:- "5. After referring to the judgments in Charan Das vs. Amir Khan, L.J. Leach & Co. Ltd. vs. Jardine Skinner & Co. Ganga Bai vs. Vijay Kumar, Ganesh Traing Co. vs. Moji Ram and various other authorities, this Court in B.K. Narayana Pillai vs. Parameswaran Pillai held: "3. The purpose and object of Order 6, Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled-for multiplicity of litigation. 6. If the aforesaid test is applied in the instant case, the amendment sought could not be declined. The dominant purpose of allowing the amendment is to minimise the litigation. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 9(f) of the plaint which were sought to be incorporated by way of amendment. The plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case, as is evident from the perusal of averments made in paras 8(a) to 9(f) of the plaint which were sought to be incorporated by way of amendment. We feel that in the circumstances of the case the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for." 8. In the case of Rafiq and Another vs. Munshilal and Another, (1981) 2 SCC 788 , it was held that the party should not suffer for the lapses on the part of their counsel. 9. In another cited case of Jai Jai Ram Manohar Lal vs. National Building Material Supply, Gurgaon, AIR 1969 (1) SC 1267, it was observed that the Rules of procedure are intended to be a handmaid to the administration of justice and party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side. 10. Another case of Suraj Prakash Bhasin vs. Raj Rani Bhasin and Others, (1981) 3 SCC 652 , wherein, in Para 6, it was observed as under:- "The liberal principles which guide the exercise of discretion in allowing amendments have been laid down in numerous decisions of this Court. Multiplicity of proceedings being avoided is one criterion. Amendments which do not totally alter the character of the action are readily granted while care is taken to see that injustice and prejudice of an irremediable character are not inflicted on the opposite party under pretence of amendment of pleadings. The Court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya vs. Maung Po Hnaung. The Court must be guided by the rule of justice expressed by the Privy Council in Ma Shwe Mya vs. Maung Po Hnaung. All rules of court are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless, no power has yet been given to enable one district cause of action to be substituted for another, nor to change, by means of amendment, the subject matter of the suit." 11. The provisions of Order 6, Rule 17 by the Code of Civil Procedure, 1908 have undergone substantially change by amendment i.e. by Code of Civil Procedure (Amendment) Act, 2002. Order 6, Rule 17 reads as under:- "17. Amendment of pleadings: The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial." 12. Thus, under proviso to Order 6, Rule 17, no application for amendments shall be made after trial has commenced unless the Court come to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 13. In the case of Anil Chandra Nath vs. Aliul Islam and Others, 2009 (1) GLT 517, this Court has discussed the legislative intent behind the amendment of Order6, Rule 17, in Para 11, which reads as under:- "11. In order to appreciate the legislative intent behind the presently amended Order 6, Rule 17, a survey of the legislative history behind the amendments, which Order 6, Rule 17 have undergone is necessary. It is pertinent to note in this regard that the Law Commission's recommendations reflected that the provisions contained in Order 6, Rule 17, allowing amendments, were delaying disposal of suits. It is pertinent to note in this regard that the Law Commission's recommendations reflected that the provisions contained in Order 6, Rule 17, allowing amendments, were delaying disposal of suits. With a view to deal with this situation, the legislature, while enacting the Code of Civil Procedure (Amendment) Act, 1999, deleted Rule 17 of the Code in its entirety. With this deletion of Rule 17, no amendment of any pleading, at any stage of the suit, became legal or feasible. This was followed by serious resistance by men in law all over the country. Responding to the agitation against complete deletion of the provisions of Rule 17, the legislature, with the help of Code of Civil Procedure (Amendment) Act 2002, restored Order 17 by recognising power of the Courts to grant amendment, but exercise of this power was restricted by adding a new proviso. This legislative intent in adding the proviso to Rule 17 is more than transparent, the intent being that after the trial commences, no amendment shall be allowed even if such an amendment is necessary for resolution of the real controversy in the suit or even if the amendment is such, which would not change the nature or character of the proceeding, unless the person, who applies for such an amendment, convinces the Court-before it (Court) considers the nature of the amendments sought for-that in spite of due diligence, he could not have sought for the amendments earlier. A reference, in this regard, may be made to the case of Ajendraprasadji N. Pandey and Others vs. Swami Keshavprakashdasji N. and Others, (2006) 12 SCC 1 , wherein the Apex Court has observed as under: "42. It is to be noted that provisions of Order 6, Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. 43. Under the proviso no application for amendment shall be allowed after the trial has commenced unless in spite of due diligence, the matter could not raised before the commencement of the trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6, Rule 17 was due to the recommendation of the Law Commission since order 17, as it existed prior to the amendment was invoked by parties interested in delaying the trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6, Rule 17 was due to the recommendation of the Law Commission since order 17, as it existed prior to the amendment was invoked by parties interested in delaying the trial. That too, shorten the litigation and speed up disposal of suits, amendment was made by amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognising the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show that how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were sell within their knowledge on their court case and manifest the absence of due diligence on the part of the appellants disentitling them to relief." 14. In the case of Vidyabai and Others vs. Padmalatha and Another, (2009) 2 SCC 409 , it was held that filing of an affidavit in lieu of examination-in-chief of the witness would amount to commencement of proceeding. 15. The petitioner/plaintiff while filing the title suit also filed an application under Order 39, Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, which was registered as Misc. (J) Case No. 5 of 2004 and the learned trial Court directed the parties in the Misc. Case to maintain status quo of the suit land as on today i.e. the date of order dated 21-01-2004. The petitioner/plaintiff alleged that the defendants violated the status quo order and forcefully dispossessed him from the land on 08-02-2004. 16. Petitioner/Plaintiff as P.W.1 examined himself in the Misc. Case and in cross-examination, he admitted that on 11-01-2004, he was dispossessed by the defendants and therefore, he lodged an FIR against the defendants on 11-01-2004 and thereafter, he filed the suit. 16. Petitioner/Plaintiff as P.W.1 examined himself in the Misc. Case and in cross-examination, he admitted that on 11-01-2004, he was dispossessed by the defendants and therefore, he lodged an FIR against the defendants on 11-01-2004 and thereafter, he filed the suit. Therefore, it is pertinent that the plaintiff knew that on the date on which he instituted the suit he was not in possession of the suit land and yet he filed an application under Order 39, Rule 1 and 2 and obtained the order of status quo and subsequently filed a petition alleging violation of status quo order passed in the Misc. Case, the application was rejected and the appeal against the order was also dismissed. 17. Therefore, the learned trial Court committed no error rejecting the prayer for amendment of the Plaint at the belated stage. Hence, this revision petition is dismissed and disposed of. There shall be no order as to costs.