Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 561 (CAL)

GITA DEVI MITTAL v. RAMDULAL KUNDU

2015-07-09

SHIVAKANT PRASAD

body2015
Judgment : SHIVAKANT PRASAD, J. This revisional application is directed against the order dated 26.11.2013 passed by the learned Civil Judge (Junior Division) 1st Court, Bankura connection with Title Suit No. 119/2010 on the grounds inter alia that the learned Court below acted illegally with material irregularity whereas the learned Court below tried to place facts about the previous civil case over the suit property and induction of the defendants/opposite parties as licensees therein and that such amendment will not change the nature and character of the suit. Background leading to the instant revision is that the petitioners as plaintiffs filed a suit for eviction of unauthorized occupation from suit premises against the opposite parties which is pending at the stage of preemptory hearing of the suit and the evidence of the parties has not yet been started. Plaint case is that the opposite parties were inducted as licensees over the suit property in the month of January, 1990 without any license fee due to good relations between the parties. Petitioners verbally requested the opposite parties to vacate the suit property as the petitioners reasonably required the suit property by revoking the license on 6.9.2010 but the opposite parties paid no heed to the request of the plaintiffs/petitioners rather tried to make construction over the suit property denying right, title and interest of the plaintiffs over the suit property. Hence, plaintiffs filed the suit for eviction of the opposite parties/defendants who were contesting the suit by filing written statement. On 17.02.2012 present petitioners/plaintiffs filed an application under Order VI Rule 17 CPC for amendment of plaint by inserting the fact that predecessor-in-interest of plaintiffs one Parameswar Drolia filed a suit for declaration and injunction against the present opposite parties being Title Suit No. 37/1991 but same was dismissed for default. The petitioners were not aware of the said case and after demise of said Drolia due to the good relation the opposite parties were inducted as licensees in respect of the suit premises without any licensee fees in the month of January, 2001with a prayer for deleting entire paragraph no. 8 of the plaint. Learned Counsel for the petitioners submits that by filing the amendment application the petitioners have tried to place before the learned trial Court facts about the previous civil case in respect of the suit property. 8 of the plaint. Learned Counsel for the petitioners submits that by filing the amendment application the petitioners have tried to place before the learned trial Court facts about the previous civil case in respect of the suit property. The order impugned goes to show that the learned Court below rejected the amendment application with an erroneous observation that the proposed amendment is not formal in nature and it will change the nature and character of the instant suit without considering the paragraph No. 3 of the written statement where defendants stated about the earlier title suit in respect of the suit premises. The learned Trial Judge has categorically observed that proposed amendment is for withdrawal of entire paragraph no. 8 of the plaint and by replacing the same by a new one which has been aimed at filling up of the lacuna on the part of the plaintiffs in consideration of the ratio propounded in Modi Spinning & Weaving Mills Co. Ltd. & Anr. Vs. Ladha Ram & Co., reported in 1977 SC 680. The learned Court was of the wishful thinking that the plaintiffs cannot be allowed to amend his plaint by withdrawing the admission made in the plaint so as to displace the evidence completely from the admission made in the plaint. Learned Judge has also relied on the decision of Aloke Kumar Mukherjee Vs. Sukumar Dey reported in 1996 (1) CHN, 229, and the views of the Hon’ble Apex Court that the amendment should not be allowed if it takes way valuable right of the other side and to incorporate altogether a new plea. Thus, by relying on the principle as laid in the above cited decision the learned Court was of the opinion that proposed amendment will change the nature and character of the suit and will take way the valuable right accrued in favour of the defendant. Per contra, the learned Counsel for the petitioners has referred to a decision of Jai Jai Ram Monohar Lal, Vs. National Building Material Supply, Gurgaon, reported in 1965 SC 1267 adverting to paragraph 5 of the judgment wherein the Hon’ble Apex Court observed thus: “Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. National Building Material Supply, Gurgaon, reported in 1965 SC 1267 adverting to paragraph 5 of the judgment wherein the Hon’ble Apex Court observed thus: “Rules of procedure are intended to be a handmaid to the administration of justice. A 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.” In case of Sushil Kumar Jain Vs. Manoj Kumar and Anr. reported in (2009) 14 Supreme Court Cases 38, it has been held by the Hon’ble Apex Court that even assuming that there was admission made by the appellant in his original written statement then also such admission can be explained by amendment of written statement even by taking inconsistent pleas or substituting or altering in defence. It has also been held that proviso to Order VI Rule 17 CPC has no manner of application as the trial has not yet commenced. In case of Sheo Prakash Kajaria & Ors. Vs. Shreelal Kajaria & Shreeram Kajaria & Ors. reported in 2010 (4) CHN (Cal.) 859, it has been held that a party should be permitted to take such plea by way of amendment and the onus of proving that the alleged admission was vitiated or the statement made by way of admission was not correct would be upon him. Thus taking a cue from the clenched position of law regarding amendment of pleadings under the provision of Order VI Rule 17 CPC, it would be profitable to consider the averments made in paragraph no. Thus taking a cue from the clenched position of law regarding amendment of pleadings under the provision of Order VI Rule 17 CPC, it would be profitable to consider the averments made in paragraph no. 8 of the plaint wherefrom it is revealed that the defendants/opposite parties were inducted in respect of the suit property without license fees in the year 1990 which averment has been sought to be replaced by way of amendment with an explanation to this effect that Parameswar Drolia the predecessor-in-interest of the plaintiffs/petitioners herein had filed Title Suit 37/1991 against the defendants/opposite parties with a prayer for declaration of right, title and interest in the suit property and for injunction thereupon against the opposite parties but the said suit was dismissed for default on 03.3.2000 due to demise of Parameswar Drolia and that said fact of the previous suit was not in the knowledge of plaintiffs/petitioners and that good relation between the present petitioners and the opposite parties revived so the defendants/opposite parties herein were inducted as licensees in the suit property without any license fees in the month of January, 2001. This is what is the averment in substance sought to be incorporated in para 8 of the plaint by deletion of the previous averments therein. Therefore, this Court does not find any change in the nature and character of the suit. It would not be out of the place to take note of the legal proposition of law that license stands revoked with the filing of the suit. This fact cannot be lost sight of that the predecessor of the plaintiffs/petitioners had filed a suit being Title Suit 37/1991 against the present defendants/opposite parties. So, the leave and license in favour of the opposite parties stood revoked with the filing of the said suit. Now, by way of amendment, the plaintiffs/petitioners only wanted to explain in detail the facts as to how the defendants/opposites were allowed and inducted afresh as a licensee without licensee fees in the month to live in the suit property in January, 2001. Therefore, by no stretch of imagination, it can be said that by way of deletion of main paragraph- 8 of the plaint and by way of amendment as sought for by the petitioners, there will be a change in the nature and character of the suit. Therefore, by no stretch of imagination, it can be said that by way of deletion of main paragraph- 8 of the plaint and by way of amendment as sought for by the petitioners, there will be a change in the nature and character of the suit. It is settled principle of law that even if infirmities creeps in the plaint, amendment may be allowed because the defendant has ample opportunity to contest and meet with defence by filing Additional Written Statement. Over and above, the facts as embodied in the plaint are the subject matter of proof by the plaintiffs for that the defendants have opportunity to meet the defence in their own way. In the context of what has been observed in the foregoing paragraphs and having regard to the principles of law as held in the above cited decisions, this Court is of the opinion and accordingly hold that the amendment sought for will not change the nature and character of the suit and when such amendment has been applied at pretrial stage, the defendants have ample opportunity to contest the suit by way of additional written statement and the proviso to Order VI Rule 17 CPC is not attracted in the facts and circumstances of the case. I find the learned Judge has erred in law and in fact by rejecting the application for the amendment of the plaint by not following the well accepted principles of law as a result, illegality has crept in occasioning failure of justice. In the result, the application under Rule 227 of the Constitution of India is allowed on contest. Accordingly, the application for amendment of the plaint be allowed by setting aside the order impugned with direction to the learned Trial Judge to permit amendment of the plaint on condition to pay cost of Rs. 10,000/- (Rupees Ten Thousand only) to the defendants/opposite parties with liberty to file the Additional Written Statement and thereafter, to proceed with the trial of the suit. The Office to supply Photostat certified copy of this order to applicant, if applied for, on urgent basis.