Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 749 (CAL)

Sri Kartick Chakraborty v. Barun Seal

2015-09-07

SIDDHARTHA CHATTOPADHYAY

body2015
Judgment : SIDDHARTHA CHATTOPADHYAY, J. Having lost the legal battle in connection with an application under Order 6 Rule 17 filed before the Learned Second Bench, City Civil Court at Calcutta in connection with T.S. No. 316 of 2011, the present petitioner has come before this forum with a prayer to set aside the impugned order dated 24.02.2013 passed by the Learned Court concerned. 2. According to the petitioner, the Learned Court below has totally committed a wrong by not the applying its mind that the amendment so sought for caused serious prejudice to the present petitioner and thereby deprived him of a right that has been accrued to him. He has also contended that there is a failure of justice by the said impugned order. Opposite party contested this case, and submitted that the impugned order does not warrant any interference. 3. At the time of hearing Learned Counsel appearing on behalf of the petitioner has argued that new facts have been intended to incorporate only to frustrate the present petitioners’ claims. He has further stated that in the main suit he has filed counter-claim and if this amendment is allowed in that case his right will be jeopardized heavily. He has categorically mentioned that new facts which the opposite party wanted to say in his application under Order 6 Rule 17 of CPC is actually not a new facts but it was a pre-existing fact and in spite of that only to harass him such plea has been taken. He prayed for dismissal of the impugned order. In support of his submission he has referred to following judgments:- 4. I have gone through the aforesaid judgments of the Hon’ble Apex Court very meticulously. Ratio of all these judgments, in my view, is such that amendment will be ordinarily refused when the effect of the amendment would be to take away from a party (i) Civil Appeal No. 6921/2009 (M/s. Reevajeetu Builders – Vs.- M/s. Narayanawami & Sons & Ors). (ii) Supreme Court Cases-2013-9-485 Mashyak Grihnirman Sahakari Sanstha Maryadit –Vs.- Usman Habib Dhuka. (iii) S.J.Ebenezer – Vs.- Velayudhan reported in AIR (Supreme Court 1998 page 746, and Union of India –Vs.- Pramod Gupta (dead) by LRS reported in (2005) 12 Supreme Court Cases 1. a legal right, which had accrued to him by lapse of time. (ii) Supreme Court Cases-2013-9-485 Mashyak Grihnirman Sahakari Sanstha Maryadit –Vs.- Usman Habib Dhuka. (iii) S.J.Ebenezer – Vs.- Velayudhan reported in AIR (Supreme Court 1998 page 746, and Union of India –Vs.- Pramod Gupta (dead) by LRS reported in (2005) 12 Supreme Court Cases 1. a legal right, which had accrued to him by lapse of time. Only this rule can apply when either fresh allegations are added or fresh reliefs are sought for by way of amendment, where for instance, an amendment is sought which merely clarifies an existing pleadings and does not in substance add to alter it. The other important condition which should govern the discretion of the Court, is the potentiality of prejudice which may cause injustice to the other side. 5. Therefore, I should now delve into the issue whether any legal right was accrued to the present petitioner, which has been jeopardized for allowing such amendment application. It appears from the record that the present petitioner has made a counter-claim in the original Title Suit Bearing No. 316 of 2011 and the present opposite party has filed written statement in that suit. In the original suit the present opposite party had given an indication that after of obtaining sanction plan from KMC he had started structure and also purchased building materials. When the present petitioner raised objection and caused disturbance for construction of building of the present opposite party, the plaintiff/the opposite party filed an application under Section 144(2) of the Code of Criminal Procedure so that his construction work was not disturbed. Accordingly, the present opposite party has prayed for a declaration of right, title, interest in the suit property and for a permanent injunction restraining the present petitioner Nos. 1 and 2 from disturbing the reconstruction work at the suit premises No. 9C Jagadish Nath Roy Lane. 6. Accordingly, the present opposite party has prayed for a declaration of right, title, interest in the suit property and for a permanent injunction restraining the present petitioner Nos. 1 and 2 from disturbing the reconstruction work at the suit premises No. 9C Jagadish Nath Roy Lane. 6. In the amendment application he has submitted that the premises No. 7B, Jagadish Nath Roy Lane, Kolkata – 700 006, is a “new” two storied building newly built on a portion of land of previous premises No. 7, Jagadish Nath Roy Lane, Kolkata – 700 006 (which is not in existence since 1974) originally belonging to one Navneet Priya Das, from whom the present petitioner No. 2 Smt. Pratima Chakraborty by way of Deed of Sale being No. 5322 dated 10.10.1972 purchased only a portion of premises No. 7, Jagadish Nath Roy Lane and demolished that portion purchased by her and newly constructed a building which is now in existence at premises No. 7B, Jagadish Nath Roy Lane, Kolkata – 700 006 in gross violation of building sanction plan. He has also wanted to incorporate that the said owner of premises No. 7 Jagadish Nath Roy Lane, filed a Title Suit being T.S. No. 307 of 1960 challenging the alleged illegal construction of the predecessor-in-interest. The Learned 5th Judge, City Civil Court, at Calcutta by a Judgment dated 11.10.1963 decreed the said suit on contest and the defendants therein being the predecessor-in-interest of the present plaintiffs above mentioned demolished the disputed wall whereby the decree was fully satisfied. He had categorically stated that the present defendants have constructed the new building on their land in gross violation of the said plan of KMC. On further enquiry from Calcutta Municipal Corporation the present opposite party found out from their records that premises No. 7B Jagadish Nath Roy Lane, Kolkata – 700 006 came into existence in the year 1976-1977 by virtue of a sanction plan being IB/BS/30 dated 24.06.1974 and that the present petitioner Nos. 1 and 2 raised construction without leaving adequate statutory space and illegally constructed three windows on the first floor of the Western Side of the said building and also constructed one unauthorized additional floor above the first floor with windows on the western side. 1 and 2 raised construction without leaving adequate statutory space and illegally constructed three windows on the first floor of the Western Side of the said building and also constructed one unauthorized additional floor above the first floor with windows on the western side. He also wanted to say that present premises No. 9C was fully covered by big corrugated shed from the beginning and old premises No. 7 had been demolished and four (4) separate buildings with four (4) separate owners, had been raised during the year 1975 to 1977. According to the present opposite party these are certainly pre-existing facts but it was not within their knowledge and they derived such knowledge after making enquiry from KMC authority. 7. Therefore, according to them these are not new facts at all. Suddenly they came to know about the history of ownership and changing character of the premises in question. In the interest of effective adjudication he had wanted to incorporate the same in his plaint. He also added that by way of such amendment the present petitioners will not in any way be prejudiced nor any right accrued to them has been taken away. Not only that in the prayer portion he has prayed for right, title, interest and permanent injunction in respect of the suit premises and in the amendment petition he did not change any prayer to that effect. So according to him, it is very formal in nature. In respect of his contention he has referred to the decisions reported in (2002) 2 SCC (Prem Bakshi & Ors. –Vs.- Dharam Dev & Ors.), AIR 1982 Supreme Court 17 (Maitri Banerjee –Vs.- Prabir Mukherjee) 2007 (ICC 37) (State of Andhra Pradesh –Vs.- M/s. Pioneer Builders), 2007 (1) ICC page 345 Indian Financial Association –Vs.- M.A.Uneer Kutti & Anr. After going through the said judgments, I find that the ratio of the aforesaid judgments is such that unless serious injustice or irreparable loss is likely to be caused to the other side the Court should adopt liberal approach and not a hypertechnical approach particularly in a case where the other side can be compensated with cost. 8. After going through the amendment sought for, I do not find any reason that the said amendment will cause failure of justice or irreparable injury to the present petitioner. 8. After going through the amendment sought for, I do not find any reason that the said amendment will cause failure of justice or irreparable injury to the present petitioner. It cannot be pre-judged at this stage that mere amendment of pleadings could possibly put the other side into trouble and there will be a failure of justice, which cannot be compensated by money. On the contrary, in my view, the reverse is possible i.e. refusal to permit the amendment sought for may result in miscarriage of justice. It is perhaps needless to say that amendment of the pleadings if allowed, does not mean that the issues involved have been decided. On the contrary, amendment means that it is kind of advance notice to the other side as to the plea which the amendment seekers may take up during the trial. The facts which wanted to incorporate in the amendment was certainly a pre-existing fact but it was not within the knowledge of the present opposite party when the suit was filed. On the basis of enquiry from KMC authority he derived that knowledge. Whether he derived his knowledge from the KMC authority or not and that too after filing of the suit can be ascertained only after recording of evidence and not at this stage. 9. Considering all these things, I am of the view that the Learned Court below’s finding cannot be disturbed except the direction as to “no order as to costs”. In the result, the revisional application fails. The order of the Learned Court below is modified to this extent that the present opposite party shall pay cost of Rs. 2,000/- as condition precedent and that amount is to be deposited in the Learned Court below within 15 days failing which amended plaint will be rejected. 10. Let a copy of this order be sent to the Learned Court below for information and taking necessary action in accordance with law. 11. Urgent certified photocopy of this Judgment and Order, if applied for, be supplied to the parties upon compliance with all requisite formalities.