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2015 DIGILAW 790 (CAL)

Nakul Das v. H. R. Infracal Limited

2015-09-18

SHIB SADHAN SADHU

body2015
ORDER : Shib Sadhan Sadhu, J. The petitioners by filing the instant application under Article 227 of the Constitution of India seeks to set aside the order No.35 dated 26.03.2014 passed by the Learned Civil Judge (Junior Division), 1st Court, Howrah in Title Suit No.95 of 2011 whereby and where under he rejected the petition under Order 6, Rule 17 of the Code of Civil Procedure filed by the petitioners/plaintiffs. 2. Mr. Souri Ghosal, Learned Counsel appearing on behalf of the petitioners, contended that the Learned Judge has acted illegally and with material irregularity in passing the impugned order refusing the prayer for amendment of the plaint made by the petitioners/plaintiffs which is absolutely necessary for the purpose of determining the real questions in controversy between the parties. He further contended that the Learned Judge failed to appreciate that the plaintiff had no knowledge of such fact at the time of institution of the suit and that they had gathered such knowledge during pendency of the suit. Further, the trial of the suit has not yet been commenced. Therefore, according to him the approach made by the Learned Judge is totally erroneous and the impugned order is liable to be set aside. He cited the decisions reported in AIR 1969 SC 1267 (Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon), 2012(1) CLJ (Cal)322 (Sasanka Sekhar Bhowmic & Ors. v. Sri Meghnath Tanti & Ors.) and 2012 (3) CHN (CAL) 350 (Doli Karmakar v. Ranjan Kumar Sadhukhan) in support of his contention. 3. Mr. Debasish Roy, Learned Counsel appearing on behalf of the O.P. No.1, on the other hand, contended that since after the introduction of the Proviso to Order 6, Rule 17 C.P.C. with effect from 1st July, 2002, the Court cannot allow an application for amendment after the 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 the trial. Therefore, the discretion is absolutely vested with the Court to allow an application for amendment after commencement of the trial if it is satisfied that the party could not have raised the matter earlier despite exercise of due diligence. Therefore, the discretion is absolutely vested with the Court to allow an application for amendment after commencement of the trial if it is satisfied that the party could not have raised the matter earlier despite exercise of due diligence. In the instant case, the petitioners/plaintiffs did not disclose any reason far to speak of sufficient or justifying reason for such belated approach which could inspire confidence and satisfaction of the Court for such failure to raise the facts in spite of his diligence before commencement of trial. Thus, the Learned Judge was quite justified in rejecting the prayer for amendment and no fault can be found with such rejection order. He placed reliance on the decision of the Hon'ble Supreme Court reported in AIR 2009 SC 1433 (Vidyabai & Ors. v. Padmalatha & Anr.) in order to substantiate his contention. 4. Having regard to the rival contention advanced by the Learned Counsel appearing for the parties in the light of the decisions placed by them, I would like to say at the very outset that by the Amendment of Order 6, Rule 17 C.P.C. with effect from 1st July, 2002 an embargo has been put upon the Court in allowing an application for amendment after the commencement of trial. Now the Court has no jurisdiction to allow an application for amendment unless it comes to the conclusion that in spite of due diligence, the party could not have raised the matter before commencement of the trial. It is needless to mention that whether the party seeking amendment has acted with due diligence or not would depend upon the facts and circumstances of each case. Therefore, I think it better and profitable to look into the factual background of the case. 5. The plaintiffs/petitioners instituted the suit being T.S. No.95 of 2011 for declaration of their title in the suit properties and for further declaration that the defendant/O.P.No.1 has not acquired any right, title interest in the suit properties etc. and for permanent injunction and other reliefs. 5. The plaintiffs/petitioners instituted the suit being T.S. No.95 of 2011 for declaration of their title in the suit properties and for further declaration that the defendant/O.P.No.1 has not acquired any right, title interest in the suit properties etc. and for permanent injunction and other reliefs. Thereafter on 01.10.2013 they filed an application under Order 6, Rule 17 C.P.C. for amendment of the plaint seeking to introduce a new paragraph to the effect that the predecessor of the plaintiffs disposed the suit property to one Satya Charan Ranjit on 19.09.1958 and subsequently after a few years the said Transferee executed a deed of reconveyance and/or sale in favour of the predecessor-in-interest of the plaintiffs and that the said property was never encumbered and as such the plaintiffs inherited the same and are in peaceful enjoyment thereof. In the said application no ground has been mentioned as to why the plaintiffs could not know such facts when they filed the suit or for such a long period during pendency of the suit. Similarly there is no whisper as to how and at what point of time they gathered such knowledge nor any whisper is there about the whereabouts or particulars of such alleged kobala dated 19.09.1958 and the alleged deed of reconveyance. It has been simply averred in the petition that in spite of due diligence it were not within the knowledge of the plaintiffs and the same are subsequently gathered. Therefore, it is apparent that the application filed by the plaintiffs is as vague as their proposed amendment and the plaintiffs failed to make out any case of 'due diligence' so as to invoke the discretionary power of the Court to allow the amendment application. 6. Due diligence is a general measure of prudence, activity, responsibility, assiduity and diligence that is expected from, and ordinarily exercised by a reasonable and prudent person under the particular circumstances, not measured by any absolute standard but depends on the relative facts of a particular case. It is very difficult, if not impossible, to accept that the plaintiffs had no knowledge at the time of filing the suit in the year 2011 about the alleged transfer which took place in the year 1958. It is very difficult, if not impossible, to accept that the plaintiffs had no knowledge at the time of filing the suit in the year 2011 about the alleged transfer which took place in the year 1958. As such keeping in view the normal standard of care and conduct of a reasonably prudent and diligent person, it cannot be inferred that the plaintiffs failed to raise the matter in spite of due diligence. 7. The laws aid the vigilant and not those who slumber. No person ought to derive any advantage by his/her wrong. The Courts are not free from statutory fetters. Justice is to be rendered in accordance with law. Judicial discretion has to be exercised in accordance with law and set of legal principles. The discretion which encourages illegality or perpetuates illegality cannot be exercised. Therefore, I find no illegality, error or irregularity in the impugned order so as to warrant interference. 8. Considering the totality of the facts and circumstances of the case noted above, coupled with the reasons aforementioned, I am of the considered opinion that the instant petition under Article 227 of the Constitution of India is bereft of any merit and the same is accordingly dismissed. 9. The urgent xerox certified copy of this judgment, if applied for, be given to the parties on usual undertaking.