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2015 DIGILAW 60 (CAL)

Tapan Paul v. Anju Paul

2015-01-28

ARIJIT BANERJEE

body2015
JUDGMENT : Arijit Banerjee, J. 1. The opposite party/plaintiff filed T.S. No. 358 of 2008 in the learned 1st Court of Civil Judge (Senior Division) at Barasat. Essentially, it is a suit for partition. 2. From the written statement filed by the defendant no.1 in the suit, the plaintiff came to know that it is being contended that she had executed a general power of attorney in favour of her mother on 10th May, 1983 and a registered deed of gift dated 8th November, 2002 was executed on behalf of the plaintiff on the strength of such power of attorney. 3. The plaintiff filed an application for amendment of the plaint to incorporate pleadings challenging the validity and/or authenticity of the said power of attorney and the deed of gift. By the order impugned, the learned Trial Court has allowed such amendment. Being aggrieved, the defendant no.1 is before this Court by way of the instant revisional application. 4. It is submitted on behalf of the petitioner/defendant no.1 that the amendment application was filed in 2009. As on that date, a claim for declaration that the registered power of attorney dated 10th May, 1983 and the registered deed of gift dated 8th November, 2002 are void, inoperative, illegal and not binding upon the plaintiff, became time barred and as such, such amendment could not have been allowed. It is also submitted on behalf of the petitioner that the amendment that has been allowed is hit by Order 6 Rule 4 of the C.P.C. inasmuch as no particulars of any fraud or undue influence have been furnished. It is submitted that if the plaintiff was really aggrieved by the said power of attorney and the deed of gift, she should have prayed for incorporation of a prayer for deliver up and cancellation of the said documents as contemplated in Section 31 of the Specific Relief Act. It is further submitted that the prayer for declaration that has been sought to be incorporated by way of amendment is hit by Section 34 of the Specific Relief Act since the plaintiff being entitled to pray for further relief including deliver up and cancellation of the said documents, has omitted to claim such relief. It is finally submitted that the defendant no.2 in the suit died in the year 2010. It is finally submitted that the defendant no.2 in the suit died in the year 2010. The order allowing the amendment of the plaint was passed without substituting the legal heirs of the defendant no.2 and this is a grave infirmity in the order. 5. Appearing on behalf of the plaintiff/opposite party, learned counsel submitted that the plaintiff came to know of the power of attorney and the deed of gift only from the written statement filed by the defendant no.1 on 8th November, 2008 and immediately made the amendment application. As regards, the point of limitation, he relied on two Apex Court decisions. Firstly, he relied on a decision reported in A.I.R. 2004 S.C. 4102 paragraphs 12 to 14, wherein the Supreme Court has held that the Courts jurisdiction to allow an amendment of pleadings is wide enough to permit amendments even in case where there has been substantial delay in filing such amendment application. The dominant purpose of allowing the amendment is to minimise the litigation. There is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of the case. If the granting of an amendment really sub-serves the ultimate cause of justice and avoids further litigation, the same should be allowed. 6. He also relied on a decision of the Apex Court in a case reported in A.I.R. 2009 S.C. 1177 para-8 where the Supreme Court reiterates the same principle of law and further observes that the court must be extremely liberal in granting the prayer for amendment, if the court is of the view that if such amendment is not allowed, a party, who has prayed for such an amendment, shall suffer irreparable loss and injury. 7. Learned counsel for the plaintiff also relied on a decision of the Apex Court in a case reported in A.I.R. 2006 S.C. 1647 in paragraph 20 whereof the Supreme Court has observed that while considering whether an application for amendment should or should not be allowed, the Court should not go into the correctness or falsity of the case in the amendment. It should not record a finding on the merits of the amendment and the merits of the averments sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing the prayer for amendment. 8. I have considered the rival contentions of the parties. It is settled law that the Court should take a liberal approach towards application for amendment of pleadings. Amendment of pleadings should generally be allowed if the same does not cause irreparable prejudice to the other party. One of the primary purposes is to avoid multiplicity of proceedings. There is no bar in law regarding allowing incorporation of a prayer by way of amendment even if, the same appears to be barred by time as on the date of the amendment application. More often than not, limitation is a mixed of fact and law and the issue of limitation should be adjudged at the final trial of the suit upon taking proper evidence. 9. In the present case, the learned Trial Judge has held that in order to seek partition the plaintiff must of necessity establish her share in the suit property and if she finds that documents are being set up which cast a doubt on her share in the suit property, she must challenge those documents. Accordingly, the learned Judge allowed the prayer for amendment. It cannot be said that the learned Judge has exercised his discretion in a perverse manner nor he has acted beyond jurisdiction. The learned Judge was of the opinion that for deciding the real issues in controversy, the amendment prayed for should be allowed. 10. In my opinion, no miscarriage of justice has been caused to the defendant since by allowing the amendment, the learned Judge has not accepted the correctness of the averments sought to be introduced in the plaint by way of amendment. The plaintiff will still have to prove such averments at the time of trial by adducing proper evidence to be entitled to a decree of declaration as prayed for. Whether the declaratory decree is barred by Section 34 of the Specific Relief Act or whether the amendment allowed is hit by Order 6 Rule 4 of C.P.C. are questions to be decided at the trial of the suit. 11. The defendants will be at liberty to agitate the point of limitation at the final trial of suit. 12. Whether the declaratory decree is barred by Section 34 of the Specific Relief Act or whether the amendment allowed is hit by Order 6 Rule 4 of C.P.C. are questions to be decided at the trial of the suit. 11. The defendants will be at liberty to agitate the point of limitation at the final trial of suit. 12. The time to file additional written statement by the defendants is extended for a period of four weeks from date. 13. For the reasons aforesaid, I am not inclined to interfere with the order impugned herein. This revisional application fails and is dismissed without any order as to costs. 14. In view of this order CAN 6110 of 2014 is also disposed of. Urgent certified copy of this order, if applied for, be given to the parties on priority basis. Revisional application is dismissed.