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2015 DIGILAW 505 (CAL)

Chandra Kanta Mistri v. Saila Bala Mistry

2015-06-18

SHIVAKANT PRASAD

body2015
Judgment : SHIVAKANT PRASAD, J. The petitioner has challenged the Order no. 130 dated 07.3.2014 passed by the Learned Civil Judge (Junior Division), 2nd Additional Court, Diamond Harbour in Title Suit No. 27 of 2010. Brief facts leading to the instant case is that the petitioner as plaintiff instituted a Title Suit being Title Suit No. 134 of 2000 in the Learned Court of the Civil Judge (Junior Division) 3rd Court, Diamond Harbour against the Opposite Parties for declaration of right, title, interest and for injunction. On being transferred to the Learned Court of the Civil Judge (Junior Division), 2nd Additional Court, Diamond Harbour the aforesaid suit was renumbered as Title Suit No. 27 of 2010. The plaint case is that the suit property described in the Schedule of the plaint originally belonged to the predecessor of the defendants Sudhir Mistri since died on 26.7.1985. Sudhir was a Baishnab and constructed a temple to the South of his residential bastu. Since Sudhir did not have any sons or daughters, he executed a Will on 23.6.1985 in favour of the plaintiff. Plaintiff got the Will probated vide Misc. Case No. 46 of 1994 and the same was decreed on 6.1.1996. Defendant No. 1 is residing in Plot 689 after converting the Sali land with the consent of the plaintiff. In rest portion plaintiff is in actual possession. It is contended that the suit plot was inherited by plaintiff, Sudhir and Bankim through their mother having 1/3rd share each and that as per the Will, Sudhir’s 1/3rd share belonged to the Plaintiff. It is stated in the plaint that the defendants have got no manner of right, title and interest but in spite of the above fact they threatened on 19.6.2000 for which the plaintiffs compelled to file the instant suit. Defendants No. 1 & 2 contested the suit by filing Written Statement challenging execution of Will with categorical statement that they are in possession. The plaintiff/petitioner filed an application for amendment of plaint on 05.12.2013 for an addition of a prayer for recovery of possession on the ground that some new facts have been stated in the Written Statement and there has been omission to state same facts in that respect, but the Learned Judge by the impugned order dated 7.3.l2014 rejected the same. The plaintiff/petitioner filed an application for amendment of plaint on 05.12.2013 for an addition of a prayer for recovery of possession on the ground that some new facts have been stated in the Written Statement and there has been omission to state same facts in that respect, but the Learned Judge by the impugned order dated 7.3.l2014 rejected the same. This is the said order impugned which is under challenge before this court on the grounds, inter alia, that the Learned Judge committed an error in law in applying the new provision of Order 6 Rule 17 of the Code of Civil Procedure in the instant Suit which was filed long back in July, 2002 and that the Learned Court below should have allowed the prayer for amendment in order to avoid multiplicity of proceeding in a situation when such amendment is necessary for the purpose of adjudication of the dispute. As such, acted illegally and with material irregularity in not going through the fact that to controvert the statements/facts as made in Written Statement, amendment of plaint is necessary. Now the point of consideration is as to whether the order impugned is tenable in law and in fact. Learned counsel for the petitioner submits that the procedure adopted by the Learned Judge while deciding the application for amendment of plaint is wrong as the learned Judge has misdirected himself in not allowing the application for the amendment of the plaint. Mr. Sandip Das, learned Counsel for the petitioner has referred to a case of Nichhalbhai Vallabhai and others, Appellants Vs. Jaswantlal Zinabhai and others, Respondents reported in AIR 1966 SC 997 , wherein it has been observed that as the object of the rule for allowing amendments to the plaint was to avoid multiplicity of suit, this was a proper case in which the Court should allow the plaint to be amended; otherwise if the amendment is refused, the plaintiff would have to file another suit. The decision reported in AIR 1957 SC 357 was relied on and the decision in AIR 1964 Guj. 283 was affirmed by the Hon’ble Apex Court. In the cited decision the respondent as a plaintiff had filed the suit for partition of the joint family properties in the Court of Civil Judge (Senior Division) at Surat against his grandfather, father, uncle and others. 283 was affirmed by the Hon’ble Apex Court. In the cited decision the respondent as a plaintiff had filed the suit for partition of the joint family properties in the Court of Civil Judge (Senior Division) at Surat against his grandfather, father, uncle and others. The contesting defendant has alleged that the plaintiff was not entitled to maintain the suit for partition of the joint family property because he had not obtained the previous consent of his father who was joint with his own father and brothers. The contention of the respondent as plaintiff was that there had already been a severance of status between the members of the joint family and the suit was merely for partition of the joint family properties by metes and bounds. On respectful consideration of the cited decision, this Court is of the opinion that the amendment sought for was of formal nature and in that set of facts the amendment was considered expedient to avoid multiplicity of suit. The reason is that if the amendment is refused, the plaintiff may have to bring another suit. In my considered opinion, the cited case is not opposite to the facts and circumstances of the instant case because the case dates back to the year 1966 when there was no inclusion of the proviso clause to Order 6 Rule 17 of the Code of Civil Procedure. Per contra, Mr. Suprabhat Bhattacharjee, the learned Counsel for the opposite parties has referred to a decision of the case of Smt. Bedana Sur & Ors. Vs. Sri Nirod Chandra Seal reported in 2013(2) CLJ (Cal), 645, wherein Single Bench of this Hon’ble Court observed that since the parties have already adduced evidence over the suit property as described in the schedule to the plaint, if the proposed amendment is allowed, certainly, the nature of the suit vis-à-vis the suit property would be changed and in such circumstances, the opposite party would be prejudiced. In the case of Rajkumar Gurawara Vs. S.K. Sarwagi & Co. reported in AIR (2008) SC 2303 : (2008) 14 SCC 364 : (2008) 4 CHN 206 (SC) it has been observed in the following lines— “The appellant—plaintiff’s amendment application is liable to be rejected because he failed to satisfy the condition prescribed in proviso to Order 6 Rule 17 of the Code of Civil Procedure. S.K. Sarwagi & Co. reported in AIR (2008) SC 2303 : (2008) 14 SCC 364 : (2008) 4 CHN 206 (SC) it has been observed in the following lines— “The appellant—plaintiff’s amendment application is liable to be rejected because he failed to satisfy the condition prescribed in proviso to Order 6 Rule 17 of the Code of Civil Procedure. Pretrial amendments could have been allowed liberally as the opposite party would not be prejudiced because he will have an opportunity of meeting the amendment sought to be made. However, in case of amendments after the commencement of trial (as in the present case), particularly, after completion of the evidence, the question of prejudice to the opposite party may arise and in such on event, it is incumbent on the part of the Court to satisfy the conditions prescribed in the proviso to the Order 6 Rule 17 of Code of Civil Procedure. If the parties to the proceedings are able to satisfy the Court that inspite of due diligence they could not raise the issue before the commencement of trial and the Court is satisfied with their explanation, amendment can be allowed even after commencement of the trial and not otherwise. On the contrary, first part of Order 6 Rule 17 of the Code of Civil Procedure makes it abundantly clear that at any stage of the proceedings, parties are free to alter or amend their pleadings on such terms as may be just and as may be necessary for the purpose of determining the real questions in controversy.” In the case of Barkatali Abdul Razzak Kazi Vs. Manzoor Abdul Razzak Kazi reported in 2014 SCC online Bom. 2887, it has been held that, “Amendment sought after commencement of trial mandate of Rule 17 would have to be followed. Plaintiffs would have to satisfy Court that inspite of due diligence, they could not move amendment application earlier. As trial has already commenced, submission of petitioner that amendment application has to be considered given pre dominance to Order 1 Rule 10 of Code cannot be accepted. Plaintiffs would have to satisfy Court that inspite of due diligence, they could not move amendment application earlier. As trial has already commenced, submission of petitioner that amendment application has to be considered given pre dominance to Order 1 Rule 10 of Code cannot be accepted. Accepting such contention would render provision of Order 6 Rule 17 of the Code of Civil Procedure otiose.” Bearing in mind the clenched position of law that it is for the plaintiff to satisfy the Court that inspite of due diligence, he could not apply for the amendment before the commencement of trial, he has to satisfy the conditions as prescribed in proviso to Order 6 Rule 17 of the Code of Civil Procedure. Now, this Court has to find as to whether the plaintiff had has the knowledge about the factum of possession by the defendants in respect of the suit properties. It appears from the copy of the plaint placed at Annexure-‘A’ of this petition that the plaintiff filed a suit for declaration and injunction with a prayer for decree of declaration that the plaintiff has right title interest and possession in the suit property whereas the defendants have no such right title interest and possession in respect thereof. The plaintiff further prayed for decree of permanent injunction forbiding the defendants from disturbing the peaceful possession of the plaintiff in the suit property and also restraining them from felling valuable trees and from catching fishes from the pond in the suit property in any manner what so ever with the specific averment made in Paragraph 4 of the plaint that plaintiff, Sudhir Chandra Mistri and Bankim Mistri have 1/3rd share each in the suit property by way of inheritance from their mother and that Will executed in favour of the plaintiff by Sudhir Chandra Mistri in respect of 1/3rd share in the suit property has been probated after the death of said Sudhir Chandra Mistri. It would appear from the cause title of the plaint itself that the defendant no. 1 Smt. Sarala Bala Mistri is nobody else but the widow of Sudhir Chandra Mistri. In Paragraph 10 & 11 of the written statement the defendants/opposite parties herein have averred in clear crystal term the manner in which they are in possession of the suit property. 1 Smt. Sarala Bala Mistri is nobody else but the widow of Sudhir Chandra Mistri. In Paragraph 10 & 11 of the written statement the defendants/opposite parties herein have averred in clear crystal term the manner in which they are in possession of the suit property. It appear on perusal of the petition of amendment proposed placed at Annexure-‘C’ that in substance, the plaintiff has prayed for amendment on the score that plaintiff has been dispossessed during the pendency of the suit and accordingly, made a prayer for amendment of the plaint with a prayer for recovery of possession. But there is no specific averment made by the plaintiff/petitioner in the petition for the amendment that as to on which date during the pendency of the suit, the plaintiff was dispossessed from the suit property. The learned Trial Judge has taken note of the proposed amendment of the plaint in the following lines— “To the west of suit plot out of total 18 cents 9 cents belonged to Aditya Mistri, Bankim Mistri and Sudir Chandra Mistri. The said three brothers got said nine (9) cents land to the west portion of the suit plot by virtue of amicable partition before promulgation of West Bengal Estate Acquisition Act 1955. They constructed three tin and tile shade rooms over their portion. Out of said three rooms the extreme eastern room was being possessed by plaintiff’s father Aditya Mistri. After the death of Aditya Mistri, the plaintiff is in possession thereof. To the adjacent western room of Aditya Mistri i.e the middle room was being possessed by Sudhir Mistri whereas the extreme western room was being possessed by Bankim Mistri. After the death of Bankim Mistri his wife Sarala Bala and his daughter Ratna Haldar used to reside therein. Sudhir Mistri had surrendered the said middle room in favour of plaintiff and started residing over non suited plot 685 with his wife i.e. defendant no. 1 Sarala Bala and her daughter Ratna transferred their share in favour plaintiff on 09-07-1999 by executing a registered sale deed. However, there was an written licensee agreement dated 16-09-1999 in between plaintiff and Sarala Bala to the effect that Sarala Bala would reside in the extreme eastern room till her death. Sarala Bala went to visit her daughter in law house keeping key of her room before the defendant no. 1 Saila Bala Mistri. However, there was an written licensee agreement dated 16-09-1999 in between plaintiff and Sarala Bala to the effect that Sarala Bala would reside in the extreme eastern room till her death. Sarala Bala went to visit her daughter in law house keeping key of her room before the defendant no. 1 Saila Bala Mistri. Sarala Bala could not return in time as she became unwell. Taking advantage of the illness of Sarala, the defendant no. 1 and 2 forcefully enter into the said room and thrown away the belongings of goods of Sarala Bala from the said room” Accordingly the plaintiff has sought for decree of recovery of khas possession from illegal occupant.” The learned Trial Judge has observed that the suit was filed before the Court of Civil Judge (Junior Division), 3rd Court at Diamond Harbour on 01.07.2000. Defendant No. 1 and 2 filed written statement on 25.01.2002. Trial Court had received the record on 15.3.2010 and accordingly, the said suit was renumbered as Title Suit No. 27/2012. It is revealed from the evidence on record that during cross-examination, the P.W.-1 the plaintiff/petitioner herein admitted the possession of the defendants. Hence, it was in the opinion of the learned Trial Judge that by way of proposed amendment the plaintiff/petitioner wanted to insert a prayer for a decree of recovery of ‘khas’ possession against the defendants without mentioning any specific date of illegal entry of the defendants over the suit property. The proposed amendment is not a formal one. Such amendment could have been allowed at the pretrial stage. In view of the proviso clause to the provision of Order 6 Rule 17 of the Code of Civil Procedure and further in view of the fact that under the proviso to the provision of Order 6 Rule 17 of the Code of Civil Procedure, no application for amendment shall be allowed after the trial has commenced unless the Court comes to the conclusion that inspite of due diligence the party could not raise the matter before the commencement of trial. Now, having gone through the pleadings of the parties placed at Annexure-‘A’ & ‘B’ and the averment as made in the application under Order 6 Rule 17 of the Code of Civil Procedure., this Court is in agreement with the observation made by the learned Trial Judge that if the proposed amendment is allowed, it will amount to a de novo trial; by which the defendants will be prejudiced. The amendment has been sought for with an object in mind to fill up the lacuna in the plaint case as revealed from the cross-examination of P.W.-1. In other words, it can be said that plaintiff/petitioner was well in the knowledge of the factum of possession of the defendants in respect of their 1/3rd share of the suit property. This fact cannot be lost sight of that the plaint was filed on 1st July, 2000 and the defendants categorically averred about the factum of possession in respect of their share in the suit property in their written statement submitted before the learned Court on 25.01.2002, but the plaintiff/petitioner waited for the trial of the suit for a considerable period of time giving an impression that the plaintiff/petitioner does not appear to be diligent in the conduct of his suit. Therefore, having regard to settled principle of law in the matter of amendment of the pleadings after the amendment of the Code, this Court finds no merit in the revisional application. Accordingly, the same is dismissed. Urgent certified photocopy of this Judgment and order, if applied for, he supplied to the parties upon compliance with all requisite formalities.