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2015 DIGILAW 833 (CAL)

Kumari Sova Das v. Gouri Patra

2015-09-30

ASHOKE KUMAR DASADHIKARI

body2015
JUDGMENT Ashoke Kumar Dasadhikari, J. The order impugned dated 2nd April, 2015 passed by learned 5th Civil Judge (Junior Division), Howrah in Title Suit No.99 of 2010 allowing the application for amendment under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure filed by the plaintiff is under challenge in this revisional application. 2. Mr. Basu, learned counsel appearing for the defendant/petitioner submits that the order impugned is not sustainable in law. He submitted that the trial of the suit have already commenced. Plaintiffs/opposite parties are required to show due diligence to get this amendment allowed in his favour in terms of proviso Rule 17 under Order 6 of C.P.C. 3. Learned counsel submitted that execution of the gift Deed dated 28th January 2010 came to the knowledge of the opposite parties on 11th February 2010. However, the plaintiffs took four years time to move this application for amending the plaint. 4. Learned counsel submitted that the period of delay was never explained. He emphasised that plaintiffs failed to show his due diligence, which is the main requirement under the provisio. He in fact made a wrong statement before this Court and got the prayer for amendment allowed in her favour. He submitted that on that score alone the application for amendment ought to have been rejected. 5. Learned counsel submitted that in another suit she has dealt with the deed by filing additional written statement and therefore, the plea taken by the plaintiffs ought not to have been accepted by the learned Court below. The plaintiffs were not entitled to get the application for amendment allowed in his favour. According to him the petitioner incorrectly stated that he has came to know about the deed of gift in 2014. 6. Learned counsel also submitted that the suit was filed in the year 2010 challenging the deed of gift executed in 2007 for one cottah eight chattaks which is not related to the present gift deed of 2010 executed for a different plot and in fact, cannot be said the same plot. 7. Learned counsel submitted that opposite parties did not seek amendment in appropriate time and appropriate stage they were not diligent. The plaintiffs/opposite parties did not come with clean hands and as such her prayers ought not to have allowed. 8. 7. Learned counsel submitted that opposite parties did not seek amendment in appropriate time and appropriate stage they were not diligent. The plaintiffs/opposite parties did not come with clean hands and as such her prayers ought not to have allowed. 8. Learned counsel submitted that the amendment is to be allowed only when it is necessary to decide the issue involved but in this case the amendment has not necessary to decide the issue. He submitted that the amendment is barred under Article 58 of the Limitation Act. Therefore, learned Court below ought to have considered this aspect of the matter. 9. Learned Counsel submitted that limitation to obtain a declaration is three years from the date when the right to issue first accrues. In the instant case the deed of gift was registered in the year 2010 and they filed this application in the year 2014. Therefore, plaintiff's claim is barred by limitation. He submitted that the point of limitation was not considered by the learned Trial Court at the time of allowing the application for amendment. He, therefore, cited a decision reported in (2007) 14 SCC 120 [Shiv Gopal Sah @ Shiv Gopal Sahu v. Sita Ram Saraugi & Ors.] in support of his contention that for introducing a time barred claim, the plaintiff is required to offer satisfactory explanation/bona fides. It was also submitted by him that substantially delayed time-barred claim of the plaintiff without any satisfactory explanation in the amendment application ought not to be allowed by the learned Trial Court. He also cited another decision reported in (2009) 10 SCC 84 [Revajeetu Builders & Developers v. Narayanaswamy & Sons & Ors.] and submitted that although, Courts have very wide discretion in the matter of amendment of pleadings but Courts' power must be exercised judiciously and with great care. He submitted that the factors required to be taken into consideration while dealing with the amendments were not considered by the learned Court below. Learned Counsel submitted the Hon'ble Apex Court have framed guidelines to be followed by the Courts while dealing with the applications for amendment. He also cited a decision in support of his submission on the point of limitation reported in (2009) SCC 126 [Khatria Hotels Pvt. Ltd. v. Union of India & Ors.]. 10. Learned Counsel also cited judgments of this Hon'ble Court wherein the point of limitation was dealt with. He also cited a decision in support of his submission on the point of limitation reported in (2009) SCC 126 [Khatria Hotels Pvt. Ltd. v. Union of India & Ors.]. 10. Learned Counsel also cited judgments of this Hon'ble Court wherein the point of limitation was dealt with. He further cited a decision of the Hon'ble Apex Court reported in (2009)2 SCC 409 [Vidyabai & Ors. v. Padmalatha & Anr.]. Learned Counsel submitted relevant paragraphs 11 and 12 wherein it is held that after framing issues trial is to be started. He has laid emphasis on para 11 and 12 of the judgment in support of his contention that framing of issue is practically starting of Trial. He further submitted that in any event the learned Court below is erroneous in coming to its conclusion that the amendment is necessary for determination of real question in the controversy between the parties. 11. On the contrary, Mr. Raut, learned Counsel appearing for the opposite parties, submitted that the point of limitation was not to be dealt with at the time of allowing amendment application. Point of limitation is to be dealt with at the time of final disposal of the suit. He submitted that at the time of deciding the application, the learned Court is to see whether such amendment is necessary for determination of the real question in controversy. If the answer is negative then the amendment ought not to be allowed. He submitted that this is the basic test, which should govern the Court's discretion in grant or refusal of amendment. He submitted that in the instant case, the self-same property which was transferred by a deed of gift in the year 2007 and which was subject matter of Title Suit No.99 of 2010, was again transferred by a different gift deed registered in the year 2010 to avoid the complications. He emphatically submitted that the self-same property, which was gifted in the year 2007, was once again gifted in the year 2010. Therefore, it has become necessary to amend the plaint for proper adjudication of the issue. He submitted that the basic test which was to be satisfied before allowing the amendment was considered by the learned Court below and the learned Court below was of clear and specific view that amendment is necessary for determination of the real question in controversy between the parties. He submitted that the basic test which was to be satisfied before allowing the amendment was considered by the learned Court below and the learned Court below was of clear and specific view that amendment is necessary for determination of the real question in controversy between the parties. He also submitted that the power to allow amendment is wide and can be exercised at any stage of the proceedings in the interest of justice he submitted that the Hon'ble Apex Court have held in several judgments that technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. It is now settled that amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigations. He submitted that in the instant case from the schedule of the plaint and also from the schedule of 2010 gift-deed it would appear that the same premise number is involved. Therefore, it has become necessary to bring the facts by way of amendment and to bring the gift-deed within the scope of the suit since the suit property is same. He submitted that no fresh cause of action was brought in. 12. The cause of action arose in the year 2007 in view of execution of the giftdeed, which is under challenge in the instant suit, and the same property is, in fact, once again transferred by execution of another gift-deed, therefore, it has become necessary to carry out amendment for proper adjudication and/or decision of the real issue involved in the matter. He submitted that otherwise there would be multiplicity of proceedings and the Court would be burdened with another litigation. 13. He cited two decisions one is reported in AIR 2001 SC 699 [Ragu Thilak D. John v. S. Rayappan & Ors] relevant paragraphs are 5 and 6 and the another decision reported in AIR 2006 SC 1647 [Rajesh Kumar Aggarwal & Ors. v. K. K. Modi & Ors.]. He also submitted that it is settled principles of law that at the time of dealing with the amendment application, the Court should not go into the correctness and/or falsity of the case in amendment likewise, it should not record the merits of the amendment at the amendment stage since there is no scope to adjudicate the merit of the matter. 14. Considered the submissions made by the learned Counsel appearing for the parties. 14. Considered the submissions made by the learned Counsel appearing for the parties. 15. This Court is to verify the statements whether the property which was involved in 2007's gift-deed was the property transferred in 2010's gift-deed, to be sure of the position, requested the learned Counsel of both the parties to produce both gift-deeds. Both the gift-deeds one was registered in the year 2007 and the subsequent one was registered in the year 2010 were produced. From a comparison of two schedules of two gift-deeds it appears that the holding number is same. Prima facie, it appears that the same property was transferred twice once. In the year 2007 by a gift-deed was executed for 1 cottah 8 chattak and there after in the year 2010 for 1 cottah 6 chattak which is 2 chattak less having the same holding number. The holding number is also tallying with the land scheduled in the plaint. 16. However, the application of amendment was considered by the learned Court below. The learned Court below while considering the case of the plaintiff/petitioner, heard both sides and came to a definite conclusion that the amendment is necessary for determination of real question in controversy between the parties. This Court is also holding the same view. 17. In case of Revajeetu Builders (supra) The Hon'ble Apex Court held that the first condition which must be satisfied before the amendment can be allowed by the Court is whether such amendment is necessary for the determination of real question in controversy and if that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment. Paragraph 58 of the said judgment is very relevant and quoted hereunder: "58. The first condition which must be satisfied before the amendment can be allowed by the court is whether such amendment is necessary for the determination of the real question in controversy. If that condition is not satisfied, the amendment cannot be allowed. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment." 18. Here in the instant case, the plaintiffs have challenged the will executed in respect of the same property-in-question. Therefore, if the same property transferred by two different gift-deeds, then both the deeds should be the subject matter of the same suit. This is the basic test which should govern the courts' discretion in grant or refusal of the amendment." 18. Here in the instant case, the plaintiffs have challenged the will executed in respect of the same property-in-question. Therefore, if the same property transferred by two different gift-deeds, then both the deeds should be the subject matter of the same suit. It would neither beneficial for the defendant nor the plaintiff to fight two suits on the same issue, therefore, on that score alone learned Judge is right to allow the amendment. However, the Hon'ble Apex Court in case of Ragu Thilak D. Jhon (supra) following several decisions of the Hon'ble Apex Court reiterated that the purpose and object of Order IV Rule 17 of the Code of Civil Procedure is to allow either parties to alter and amend his pleadings on such terms as may be just and proper. The power to allow amendment is wide and can be exercised at any stage of the proceedings and in the interest of justice on the basis of guidelines laid down by various courts and this Court. It was also held that amendment could not be claimed as a matter of right and under all circumstances, but it is equally true that the Courts while deciding such prayers should not adopt higher technical approach. Liberal approach should be the general rule particularly in cases where the other side can be compensated with costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. The Hon'ble Supreme Court was of clear view if the aforementioned test is fulfilled in a case, the amendment sought could not be declined, in that event there should not be any hesitation to allow amendment. The Hon'ble Apex Court is quite specific in its findings that the dominant purpose of allowing the amendment is to minimise the litigation. It was also held that the reliefs sought for by way of amendment, if barred by time, is arguable in the circumstances of this case and the plea of limitation being disputed could be made a subject matter of the issue after allowing the amendment prayed for. Therefore, the submissions made by the learned Counsel appearing for the petitioner are of no substance. Therefore, the submissions made by the learned Counsel appearing for the petitioner are of no substance. The plea of limitation could be decided at the time of final hearing. However, facts revealed in this case also requires amendment should be allowed for the interest of justice, which was done by the learned Court below. 19. It is now settled and has become law of the land that Court should not go into correctness or veracity of the case of amendment and should not also record a finding on the merit of the amendment and the merit of the amendment sought to be incorporated by way of amendment are not to be adjusted at the stage of allowing prayer for amendment. 20. Therefore, the learned Court below have done nothing wrong allowing the amendment so prayed. 21. Therefore, there is no merit in the revisional application and, as such, dismissed. It is made clear that the observations made in this order were all tentative and would in no way effect the Trial and final disposal of the suit. 22. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.