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2016 DIGILAW 131 (CAL)

Manglesh Jalan v. Sahish Deora

2016-02-04

INDRAJIT CHATTERJEE

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JUDGMENT : Indrajit Chatterjee:-This is an application under Article 227 of the Constitution of India as filed by the present petitioners, who are the plaintiffs in Title Suit No. 22 of 2001, now pending before the Civil Judge (Senior Division), 6th Court at Alipore. This application has been preferred by the present plaintiffs, as the said court refused to allow the prayer of the petitioners as made out before that court under Order 6 Rule 17 of the Code of Civil Procedure read with Section 151 of the said Code. It has been prayed by the present petitioners before this court in the said amendment petition that the schedule referred to in internal page 8 and running page 27 of this revisional application be added after the paragraph 18 giving another paragraph 18(a). It was submitted by the learned advocate appearing on behalf of the petitioners by taking me to different documents as annexed in this revisional application. He took me to running page no. 15 of this revisional application made under Article 227 of the Constitution of India, particularly to Clause 4 of that agreement executed between the parties dated 22nd April, 1970. I want to refer to Clause 4 of that agreement. The Clause 4 of that agreement runs thus:- “that this agreement will be subject to our agreement with the Commissioner for the Port of Calcutta”. It may be noted that at that point of time the Port of Kolkata was used to be called in that name and now it is being called as Calcutta Port Trust (hereinafter referred to as the KPT). It is the main grievance of the present petitioners that the said prayer for incorporation of that paragraph 18(a) was disallowed by order No. 127 dated 11.06.2012 passed by that trial court. For the readers of this order it may be noted that prior to this amendment petition, one application was filed by the present plaintiffs under Section 151 of the CPC praying for a direction upon the defendant to pay the increased amount payable on the ground of enhancement of charges by the KPT. That petition was rejected by the trial court. Thereafter the matter came before this court and this court also did not subscribe to the claims of the present petitioners In C.O. No.3409 of 2007. That petition was rejected by the trial court. Thereafter the matter came before this court and this court also did not subscribe to the claims of the present petitioners In C.O. No.3409 of 2007. Thereafter, this court decided that it is a matter of evidence to decide this application. The matter went before the Apex Court vide a common judgment as passed in Civil Appeal No. 2381 of 2009 and Civil Appeal No. 2382 of 2009 the Apex Court decided the matter. The first appeal arose out of SLP(C) No. 8329 of 2008 and the Second Civil Appeal arose out of SLP(C) No. 19209 of 2008. The matter was disposed of by the Hon’ble Apex Court on 30th April 2009. Mr. Mallick, the learned advocate appearing on behalf of the petitioners took me to page 44 of the revisional application in paragraph no. 6 wherein the Apex Court proceeded to say “In view of above, it may not be necessary for us to go into the issues raised by the parties in these appeals…..” Thus, it was submitted by the learned advocate appearing for the petitioner that in these SLPs the Apex Court did not enter into the merit and did not dispose of those SLPs on payment of Rs.31,656.04/- and Rs.38,961.08/- per month. It is also submitted by the learned advocate on behalf of the petitioner that as per that undertaking the opposite party is paying to the petitioner as per order of the Apex Court the amount just referred to above. It was argued on behalf of the petitioner that the said payment was nothing but one ad hoc payment to meet the situation at that point of time and the suits were not disposed of by the order of the Apex Court. As suggested by Mr. Saptansu Basu, learned Advocate appearing on behalf of the respondent who on instructions very fairly submitted that the respondent herein is going on paying the amount of Rs.31,656.04/- and Rs.38,961.08/- in both these appeals, respectively, commencing from 5th of April, 2009, subject to the result of the Civil Suit pending before the trial court between the parties. He further submitted that the Apex Court did not enter into the merit of that appeal. Mr. Basu, learned advocate appearing on behalf of the opposite party submitted that the learned trial court rightly disposed of that amendment petition in the negative. He further submitted that the Apex Court did not enter into the merit of that appeal. Mr. Basu, learned advocate appearing on behalf of the opposite party submitted that the learned trial court rightly disposed of that amendment petition in the negative. He took me to page 23 of the application to show that the date present appellant took was on 1.2.2001 and in order no. 33 it was 01.04.1987. He submitted that the claims for damages in the suit itself was fixed from 01.02.2001, but through this proposed amendment, the present petitioners/plaintiffs want to stretch it back even up to the date of the agreement that is 2nd April 1970 and that is not permissible being barred by limitation. He further submitted that the present amendment cannot go back to a fanciful date of 01.04.1987. It was further argued that no damages can be claimed from a petition which is barred by limitation and that as per plaint, the damages were claimed from 01.02.2001. Thus, he submitted that the learned trial court rightly rejected the application for amendment as filed by the petitioners under Order 6 Rule 17 of the C.P.C. It was further argued that through this petition a copy of which has been annexed as Annexure ‘C’ pages 20 – 29 of the application, if allowed, will make inroad to a date much before 2001, that is, the date fixed by the plaintiffs when the suit was filed. It was further argued by the learned advocate that almost the same cause of action went before the Apex Court in connection with these litigations which was disposed of by the Apex Court as per order dated 13th April, 2009 wherein the Apex Court directed that the opposite party will go on paying at the rate of Rs. 70,617.12/- in total (calculation make taking into account the Title Suit No. 22 of 2001 and Title Suit No. 23 of 2001) and that this amount the present opposite party is paying month by month to the plaintiffs and the plaintiffs is duly accepting the said amount. I have gone through the present revisional application, the amendment petition filed by the present petitioner, order passed by the Apex Court, that the submissions made by the learned advocates of the parties, the other documents as filed by the present petitioner and also the agreement dated 2nd July, 1970. I have gone through the present revisional application, the amendment petition filed by the present petitioner, order passed by the Apex Court, that the submissions made by the learned advocates of the parties, the other documents as filed by the present petitioner and also the agreement dated 2nd July, 1970. The application for amendment of the plaint if allowed will take the plaintiff to the demand of certain amount since 1st April, 1987 or will allow the present petitioner to lead evidence even in respect of an incident which took place on 1st April, 1987 that is the date of increase of the occupational charges by the Calcutta Port Trust. In the contract executed in between the parties there was no clause regarding the variation of the charge except as regards the contract between the parties. The matter was taken before the Apex court and the Apex court disposed of the appeals on payment of Rs.31,656.04 and Rs.38,961.08 effective from 5th April, 2009 per month subject to the result of the suits thus by this order of the Apex Court was definitely one ad hoc order and passed on consent. That order of the Apex Court was ordered to be subject to the result of the suits thus if the petitioner fails to get a decree in the suit he will have to return back the money received as per order of the Apex Court. The suits were filed by the present petitioner for eviction of the opposite party on termination of the tenancy. One petition was filed by the petitioner under Section 151 of the C.P.C to pay compensation at an enhance rate which is required to be paid by the petitioner. That petition was rejected by this Court in C.O. No.3409 of 2007 on 01.10.2007. it was held by a coordinate bench of this Court that the defendant opposite party is contesting the said suit by filing written statement contending, inter alia, that the defendant is a tenant under the plaintiff petitioner. The grant of licence in favour of the defendant opposite party by the plaintiff petitioner was in dispute of the defendant opposite party. it was held by a coordinate bench of this Court that the defendant opposite party is contesting the said suit by filing written statement contending, inter alia, that the defendant is a tenant under the plaintiff petitioner. The grant of licence in favour of the defendant opposite party by the plaintiff petitioner was in dispute of the defendant opposite party. It was further held by this court in that revisional application that under such circumstances, the dispute relating to the status of the defendant is an issue in the said suit and if it is ultimately found by the learned trial judge that the defendant is a monthly tenant under the plaintiff petitioner then the opposite party is required to pay the rent as per that agreement. It was further held that at this stage it cannot be ascertained the defendant opposite party is a tenant or a licensee. The matter is as it was there on 01.10.2007 the suit has not progressed but the present petitioner is running after the inter locutary matters. The said order of rejection went before the Apex Court about which I have already stated the said order of the Apex Court was passed on 13.04.2009 and the present petition under Order 6 Rule 17 was filed on 28.04.2009 that is just after 15 days of the order of the Apex Court. In the order impugned the learned trial Court duly depicted the case of the parties and it is a well-reasoned order and this Court is satisfied that there is no reason to interfere with the order of the trial court passed on 11.06.2007. Accordingly, the instant petition under Article 227 of the Constitution of India assailing the said order no.127 dated 11.06.2012 is hereby rejected. There will be no order as to costs. The learned trial court is to see that the matter is disposed of at an early date. The learned lawyers of the court below will cooperate with the learned trial court to the best extent possible. There will be no cost for both the litigations. This order will also guide the C.O No.3111 of 2012 which is in between the same parties, as regards the order bearing No.127 dated 11.6.2012 as the same point is involved in that revisional application also. There will be no cost for both the litigations. This order will also guide the C.O No.3111 of 2012 which is in between the same parties, as regards the order bearing No.127 dated 11.6.2012 as the same point is involved in that revisional application also. No separate order is being passed in C.O. No.3111 of 2012 except the fact that this order will govern in that Civil Order. Thus the said C.O. is also dismissed without cost.