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2015 DIGILAW 80 (MAN)

Moirangthem Yaima Singh v. Laishram Roma Devi

2015-05-25

LAXMI KANTA MOHAPATRA

body2015
JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. The order dated 18.06.2014 passed by the learned District Judge, Bishnupur in Judicial Misc. case No. 12 of 2014 arising out of Civil Appeal No. 1 of 2014 allowing an application filed by the defendant-appellant before the learned District Judge, Bishnupur for amendment of the written statement is the subject matter of challenge in this Revision. 2. The petitioner filed the suit for declaration of title and consequential reliefs of cancellation of registered gift deed dt. 19.8.2006 and for perpetual injunction. 3. The case of the plaintiff-petitioner is that he is the owner in possession of a piece of land under patta No. 608 covered by Dag No. 6546, 6547 and 6548 extending to an area of 2.50 acres having half share therein. His co-pattadar is his elder brother. The said co-pattadar also occupied and possessed his share without interference. On 8.4.2008, when the plaintiff-petitioner went to the office of the Settlement Officer, Moirang, he found that his share of land had been mutated in the name of the defendant without his knowledge on the basis of a registered gift deed dated 19th August, 2006 purportedly executed by him in favour of the defendant-respondent. The plaintiff-petitioner immediately filed an application before the Asstt. Survey and Settlement Officer, Moirang in respect of his share of 1.25 acre of land which is the suit land and on the basis of the said application, the name of the plaintiff-petitioner was restored in the relevant land records. The plaintiff-petitioner, thereafter, sold the suit land to one Oinam Manisana Singh of Chigmei village and consequently his name was mutated in the records of the suit land by order dated 12.5.2009 passed in Mutation Case No. 111/AS & SO/Moirang. The plaintiff-petitioner came to know that the defendant-respondent again managed to restore her name in the land records in respect of the share of the plaintiff-petitioner by order of the Director of Settlement, Govt. of Manipur on the basis of the said gift deed. It is the case of the plaintiff-petitioner that he had never transferred the suit land in favour of the defendant-respondent in any manner. The defendant-respondent had forged signature of the plaintiff-petitioner by impersonating him in preparing and registering the gift deed. of Manipur on the basis of the said gift deed. It is the case of the plaintiff-petitioner that he had never transferred the suit land in favour of the defendant-respondent in any manner. The defendant-respondent had forged signature of the plaintiff-petitioner by impersonating him in preparing and registering the gift deed. Therefore, the suit was filed by the plaintiff-petitioner to declare the said gift deed dated 19th August, 2006 as null and void and also for perpetual injunction. 4. The defendant-respondent contested the suit by denying all the allegations made by the plaintiff-petitioner. It is the case of the defendant-respondent that on 18th August, 2006, out of the total land of 2.50 acres, plaintiff-petitioner gifted his half share from out of patta No. 53/1 covered by Dag No. 6456, Patta No. 53/2(New) covered by Dag No. 6547, patta No. 53/284 covered by dag No. 6458 extending to total area of 1.25 acre. In view of the gift deed registered before the Sub-Registrar, the name of the defendant-respondent was mutated in respect of the said area under gift deed. It is also the case of the defendant-respondent that the gift deed was made by the plaintiff-petitioner with full knowledge of his co-pattadar, Moirangthem Mani Singh who also signed in the said gift deed by affixing his signature on the deed as a witness. It is also pleaded by the defendant-respondent that the plaintiff-petitioner had been paid the money for sale of his share of land in installments by the defendant-respondents and after payment of the full amount, the plaintiff-petitioner suggested that execution of a sale deed in respect of the said land will require huge amount of money as stamp duty. If a gift deed is executed, parties could save money. For the above reason, gift deed was executed instead of a sale deed. However, after the land was mutated in the name of the defendant-respondent on the basis of the gift deed, the plaintiff-petitioner re-entered his name in respect of the land under gift deed in the revenue records for which the defendant-respondents again had to take steps and by virtue of the order of the Director of Settlement, the land under the gift deed was recorded in the name of the defendant-respondent. 5. The Trial Court decreed the suit and dismissed the counter claim of the defendant-respondent by judgment and decree dated 23.12.2013. 5. The Trial Court decreed the suit and dismissed the counter claim of the defendant-respondent by judgment and decree dated 23.12.2013. The defendant-respondents challenging the above judgment and decree, preferred a Civil Appeal No. 1 of 2014 before the learned District Judge, Bishnupur. During pendency of the said Civil Appeal, the defendant-respondent filed an application under Order VI Rule 17of the C.P.C. for amendment of the written statement. A copy of the written statement has been annexed to the Revision as Annexure A/2. Copy of the application for amendment of the written statement is also annexed to the Revision as Annexure A/4. The amendment sought for are that the defendant-respondent had good relationship with the petitioner-appellant and particularly N. Sarat Singh, husband of the defendant-respondent had high regard of the plaintiff-petitioner being elder brother of his mother-in-law. In the month of March, 2004, the plaintiff-petitioner expressed before his sister who happened to be mother of the defendant-respondent to find a person to purchase his share of land for a price of Rs. 2 lakhs out of which Rs. 1 lakh was to be paid as the first installment. Mother of the defendant-respondent informed the matter to the defendant and asked her to purchase the land. At that relevant time, the defendant-respondent and her husband did not have sufficient money to purchase the land and after negotiation with the plaintiff-petitioner, paid a sum of Rs. 80,000/- (Rupees eighty thousand) only as first installment through mother who is sister of the plaintiff-petitioner. Thereafter, the rest amount was paid by the defendant-respondent through her mother and payment of the whole amount was completed in the month of July, 2006. The plaintiff-petitioner, after receipt of the initial amount had delivered possession to the defendant-respondent in April, 2004. After payment of the total amount, the defendant respondent requested to execute the necessary deed to transfer in order to get the land mutated in her name. It was told by the plaintiff-petitioner that if the transaction is done in the form of a sale deed, value of the land is to be reflected and huge amount of money would be required to purchase the stamp paper and if a gift deed is made, purpose could be served by spending lesser amount. It was told by the plaintiff-petitioner that if the transaction is done in the form of a sale deed, value of the land is to be reflected and huge amount of money would be required to purchase the stamp paper and if a gift deed is made, purpose could be served by spending lesser amount. Considering the above suggestion of plaintiff-petitioner, the defendant-respondent agreed for execution of the gift deed and accordingly, the gift deed dated 18.8.2006 was registered in the office of the A.S.O., Moirang. It is further stated in the amendment petition that though this story was narrated to the counsel while drafting the written statement, her case was not disclosed properly in the written statement and counter claim and therefore, the amendment of the written statement was necessary. Apart from the above amendment in the body of the written statement, an alternative counter claim was made for declaration that the plaintiff-petitioner had sold the suit land to the defendant-respondents though he had executed the deed in the form of gift. 6. Shri S. Sachindra, learned counsel appearing for the petitioner assailed the impugned order on several grounds. It was submitted by the learned counsel that initial stand of the defendant-respondent in the written statement is that she herself had paid a sum of Rs. 2 lakh in installment to the plaintiff-petitioner and evidence was also laid by her in that line but in the amendment sought for above, she came out with a different story stating that the amount was paid to the plaintiff-petitioner not by her but through her mother. According to the learned counsel, if such a prayer for amendment is allowed, it will take away the effect of evidence adduced on behalf of the defendant-respondent with regard to payment of Rs. 2 lakh as alleged by her. Learned counsel further submitted that though the prayer for amendment of the written statement at the stage of appeal could be considered, the Court must bear in mind that such amendment should not be allowed if the same could be made during pendency of the suit. In absence of due diligence on the part of the defendant-respondent in filing an application for amendment during pendency of the suit, prayer for amendment at appellate stage should not be entertained. In absence of due diligence on the part of the defendant-respondent in filing an application for amendment during pendency of the suit, prayer for amendment at appellate stage should not be entertained. The learned counsel further submitted that the amendment sought for in the prayer portion of the counter claim completely changes nature and character of the counter claim and therefore, such amendment should not have been allowed. 7. Shri Modhu, learned counsel appearing for the defendant-respondent submitted that the amendment sought for is in the nature of explaining what has already been stated in the written statement and therefore, basic structure of the written statement shall remain same even after amendment. Therefore, there is no reason for the Court to interfere with the impugned order. It was further submitted by the learned counsel appearing for the defendant-respondent that counsel who was appearing before the Appellate Court did not narrate the story in the written statement, as had been instructed and therefore amendment of the written statement became necessary at the appellate stage. Therefore, it cannot be said that there was no diligence on the part of the defendant-respondent in filing an application for amendment of the written statement as it was noticed at the stage of appeal, when the appeal was being conducted by another counsel. 8. There is no dispute about the proposition of law that amendment of either plaint or written statement can be allowed even at the appellate stage. Therefore, the application for amendment of the written statement at the appellate stage was maintainable. Question that requires determination is as to whether the amendment sought for at the appellate stage changes the nature and character of the stand taken by the defendant-respondent in the written statement or not. It is also required to see whether the additional relief claimed in the counter claim by way of amendment is permissible or not. 9. As stated earlier, it was the case of the defendant-respondent that he purchased the land from the plaintiff-petitioner on payment of consideration amount in installments. It is the specific stand of the defendant-respondent that money was paid by her to the plaintiff-petitioner. 9. As stated earlier, it was the case of the defendant-respondent that he purchased the land from the plaintiff-petitioner on payment of consideration amount in installments. It is the specific stand of the defendant-respondent that money was paid by her to the plaintiff-petitioner. As a matter of fact, the defendant-respondent examined herself as DW-1, and in paragraph 3 of the examination-in-chief, she specifically stated that the plaintiff took the money from her on installment basis for the price of the suit land prior to execution of the gift deed. In cross-examination she volunteered to make statement before the Court that no amount of money was paid to the plaintiff-petitioner by her but the money was paid through her mother. However, the statement of the defendant-respondent that she herself paid the money to the plaintiff petitioner is not only supported by her mother examined as DW-2 but also by her husband examined as DW-3. Therefore, by way of amendment, the defendant-respondent tried to introduce a new fact which had neither been pleaded nor evidence was adduced during hearing of the suit. While it was the consistent plea that the defendant-respondent paid the consideration amount to the plaintiff-petitioner herself, by amendment, it is stated that the amount was paid through her mother. Though the proposed amendment may not affect the merit of the suit, if the prayer for amendment in this regard is allowed, it will take away the effect of the statement made by the defendant-respondent in the written statement that the consideration amount was paid by her and the evidence laid to that effect in course of hearing of the suit. In this connection, reference may be made to a decision of the Apex Court in the case of Chander Kanta Bansal v. Rajinder Singh Anand reported in (2008) 5 SCC 117 . The Apex Court while considering Order 6 Rule 17 of the C.P.C. held that the entire object of the amendment to Order 6 Rule 17 as introduced in 2002, is to stall filing of application for amending a pleading subsequent to the commencement of trial, to avoid surprises and that parties had sufficient knowledge of the other's case. It also helps in checking the delay in filing the applications. Once the trial commences on the known pleas, it will be very difficult for any side to reconcile. It also helps in checking the delay in filing the applications. Once the trial commences on the known pleas, it will be very difficult for any side to reconcile. In spite of the same, an exception is made in the newly inserted proviso where it is shown that in spite of due diligence, the party could not raise a plea, it is for the court to consider the same. Therefore, it is not a complete bar nor shuts out entertaining of any later application. The reason for adding proviso is to curtail delay and expedite hearing of cases. The Court further held that proviso limits the power to allow amendment after the commencement of trial but grants discretion to the court to allow amendment if it feels that the party could not have raised the matter before the commencement of trial in spite of due diligence. It is true that the power to allow amendment should be liberally exercised. The liberal principles which guide the exercise of discretion in allowing the amendment are that multiplicity of proceedings should be avoided, that amendments which do not totally alter the character of an action should be granted, while care should be taken to see that injustice and prejudice of an irremediable character are not inflicted upon the opposite party. So whether a party has acted with due diligence or not would depend upon the facts and circumstances of each case and this would, to some extent, limit the scope of amendment to pleadings but would still vest enough powers in courts to deal with the unforeseen situations whenever they arise. In the case of Ajendraprasadji N. Pandey and anr. v. Swami Keshavprakeshdasji N and ors. reported in (2006) 12 SCC 1 , the Supreme Court observed that if an application for amendment is filed after commencement of trial only on the ground that such amendment could not be placed before commencement of trial in spite of taking utmost care, is not sufficient to allow such amendment, after commencement of trial. In the present case, the proposed amendment, if allowed, shall take away the effect of original stand taken by the defendant-respondents that she herself paid the money to the plaintiff-petitioner as well as the evidence laid by the DW-1, DW-2 and DW-3 supporting such statement made in the written statement. In the present case, the proposed amendment, if allowed, shall take away the effect of original stand taken by the defendant-respondents that she herself paid the money to the plaintiff-petitioner as well as the evidence laid by the DW-1, DW-2 and DW-3 supporting such statement made in the written statement. It may also be required to adduce further evidence as to who paid the money and if evidence is laid on behalf of the defendant-respondent as per the proposed amendment such evidence shall be contrary to what has already been stated by the 3(three) witnesses supporting the original stand taken in the written statement. 10. Mr. Modhu, learned counsel appearing for the respondents placed reliance on a decision of the Apex Court in the case of Ragu Tilak D. John v. S. Rayappan and others reported in (2001) 2 SCC 472 . In the said reported case, the amendment of the plaint was sought for. The plaintiff had filed the suit for permanent injunction restraining the defendants from demolishing the compound wall. It was stated in the amendment petition that during pendency of the suit, the defendants entered into the property and demolished the compound walls and accordingly, amendment of the plaint was sought for. The plaintiff wanted to incorporate the relief for recovery of damages. Such application for amendment was filed immediately after the walls were demolished and such amendment became necessary because of the subsequent event during pendency of the suit. Therefore, the Court allowed such amendment. Learned counsel appearing for the defendant-respondent also relied upon another decision of the Apex Court in the case of Rajkumar Gurawara (Dead) through L.R.s v. S.K. Sarwagi and company Pvt. Ltd. And another reported in (2008) 14 SCC 364 . In the said reported case, the plaintiff sought for amendment of the plaint at the stage of argument even though a specific plea had been taken with regard to non-joinder of a party in the written statement. Therefore, the application for amendment even though filed at a very belated stage, the prayer was allowed. These two decisions have no applications to the facts of the present case. 11. The other amendment sought for is in relation to the relief claimed in the proposed amendment. Therefore, the application for amendment even though filed at a very belated stage, the prayer was allowed. These two decisions have no applications to the facts of the present case. 11. The other amendment sought for is in relation to the relief claimed in the proposed amendment. In the written statement filed by the defendant-respondent, a counter claim was raised and a prayer was made for declaration that the defendant-respondent is the absolute owner of the suit land having been gifted by the plaintiff-petitioner and also for a declaration that the gift deed was still existing. In the proposed amendment, a declaration was sought for to the effect that the plaintiff-petitioner sold the suit land to the defendant-respondent though he had executed the deed in the form of gift. This amendment sought to be made in the counter claim is in the line of the amendment sought for. This prayer could also be made at the time of filing the written statement. Even the prayer for amendment in the body of the written statement could also be sought for during pendency of the suit. No steps were taken by the defendant-respondent to amend the written statement on facts and in relation to the relief when the suit was pending before the Trial Court. Ground taken by the learned counsel for the defendant-respondent is that the conducting counsel before the Trial Court had not properly drafted the written statement. I am afraid, on this ground, no amendment can be allowed at the appellate stage merely because a new counsel has been engaged by the defendant-respondent to conduct the appeal before the learned District Judge. It is due diligence of the parties and not of the counsel. The defendant-respondent should have been diligent in getting the amendment when the suit was pending and not at the appellate stage as the proposed amendment shall take away the effect of the evidence already laid by the defendant-respondent in course of hearing of the suit. 12. I therefore, allow the revision and set aside the impugned judgment.