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Calcutta High Court · body

2015 DIGILAW 829 (CAL)

Turner Morrison Ltd. v. Bharat Coking Coal Ltd.

2015-09-30

SOUMEN SEN

body2015
Order This is an application for amendment of the written statement filed by the defendant in a suit instituted by the plaintiff in the year 2000 praying inter alia for a decree for eviction and payment of municipal rates and taxes. It appears that in the said proceeding, an order was passed on 6th August 2001 recording that the defendant had agreed to pay arrear dues together with liability for payment of Calcutta Municipal Corporation’s rates and taxes for certain period. Leave was also given to the defendant to file a written statement. The defendant appears to have complied with the said direction and has filed a written statement. In the original written statement, the defendant said that there was no default in payment of rent and has pleaded that negotiations and discussions were on between the parties for settlement of pending issues even after filing of the suit and a settlement has already been arrived at agreeing continuity of the tenancy. In the proposed amendment, the defendant has stated that consequent upon discovery of a fact that the property vests in the defendant by reason of operation of law, the defendant had no obligation to pay any such municipal rates and taxes. Mr. S.K. Kapoor, learned Senior Counsel opposing the application, has submitted that the defendant cannot be allowed to resile from the admissions made in the written statement. The learned Senior Counsel has referred to the following decisions:- i) Heeralal vs. Kalyan Mal & Ors. reported at AIR 1998 Supreme Court 618; ii) Muktaben Mohanjibhai Solanki & Anr. vs. Jagdishbhai Devrajbhai Patel reported at AIR 2009 Gujarat 172; iii) S. Malla Reddy vs. M/s. Future Builders Co-operative Housing Society & Ors. reported at AIR 2013 Supreme Court 3693; iv) M/s. Modi Spinning & Weaving Mills Co. Ltd. & Anr. vs. M/s. Ladha Ram & Co. reported at AIR 1977 Supreme Court 680. It is submitted that in Heeralal (supra), the Hon’ble Supreme Court had clearly stated that amendment in the written statement for the purpose of withdrawing admission should not be allowed. The Division Bench in Heeralal (supra) held that the view expressed in Akshaya Restaurant vs. P. Anjanappa reported at 1995 Supp (2) SCC 303 : (1995 AIR SCW 2277), referred to at paragraph 8 of the said decision, was per incuriam. Mr. The Division Bench in Heeralal (supra) held that the view expressed in Akshaya Restaurant vs. P. Anjanappa reported at 1995 Supp (2) SCC 303 : (1995 AIR SCW 2277), referred to at paragraph 8 of the said decision, was per incuriam. Mr. Pradip Kumar Dutta, learned senior counsel appearing on behalf of the defendant submits that the said amendment is necessitated by reason of discovery of a fact that the defendant has now become owner of the suit premises by reason of the Coal Mines Nationalization Act, 1972 and in view thereof the defendant has no obligation to make any payment towards municipal rates and taxes. It is further argued that since the defendant is the owner of the property, the question of eviction of the petitioner from the suit premises could not and does not arise. The learned senior counsel has submitted that in the proposed written statement the reason for bringing on record certain facts have been clearly stated in the several paragraphs of the written statement which would show that the defendant in fact has explained the reason for introducing such facts in the written statement explaining the earlier admissions made with regard to the status of the defendant in the suit premises. I have carefully considered the written statement. It appears that in the proposed amendment, the defendant has explained the reason for introduction of the subsequent facts. The defendant has stated that the agreement and understanding on the basis of which the defendant had agreed to pay the municipal rates and taxes or admitted the ownership of the plaintiff were on an erroneous basis and it was only on discovery of subsequent facts, which formed the basis of a suit filed by the defendant in this Court claiming ownership, that such amendment has now become necessary. It is well settled that a defendant can always explain an admission made in the written statement. If no explanation was offered in the proposed amendment, the court might not have been inclined to allow such amendment and would have accepted the submissions made by Mr. Kapoor. Under such circumstances, the application for amendment is allowed. There shall be an order in terms of prayer (a) of the Master’s Summons. The defendant is directed to carry out the amendment within two weeks after reopening of Puja vacation. Kapoor. Under such circumstances, the application for amendment is allowed. There shall be an order in terms of prayer (a) of the Master’s Summons. The defendant is directed to carry out the amendment within two weeks after reopening of Puja vacation. There shall also be an order in terms of prayer (c) of the Master’s Summons. A copy of the amended written statement shall be served upon the advocate on record of the plaintiff within two weeks after carrying out such amendment. The plaintiff shall be entitled to file an additional pleading dealing with the amendment on or before 15th January 2015. This application accordingly stands allowed. However, there shall be no order as to costs.