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2016 DIGILAW 27 (TRI)

Jaqanath Rishi Das v. State of Tripura

2016-02-02

DEEPAK GUPTA

body2016
JUDGMENT : By means of this petition, the petitioner hereinafter referred to as the plaintiff has challenged the order dated 26.11. 2015 passed by the learned Civil Judge, Sr. Division, Court No.2, West Tripura, Agartala in Case No. M.S. 08 of 2008 whereby he rejected the application filed by the plaintiff for amendment of the plaint. 2. The undisputed facts are that the plaintiff originally filed a civil Suit. In this civil suit it was alleged that on 19.10.2005 at about 12.00 noon when the plaintiff was at Durga Chowmuhani near Suryatorun Club an electric wire fell on him. As a result of the electrocution he suffered injuries and both his hands had to be amputated. According to the averments made in the plaints the plaintiff was a rickshaw puller and had become totally disabled and was unable to earn any amount whatsoever. The Tripura State Electricity Corporation Limited (TSECL) took a stand that no power line had fallen down and no accident had taken place on 19.10.2005 as alleged. The TSECL denied that any such occurrence had taken place. The suit was originally filed under the Fatal Accident Act and in the said suit following issues were framed: “ISSUES 1. Is the claim of plaintiff petitioner is maintainable in its present form? 2. Whether on 19.10.2005 at about 12-00 hrs. near Suryatarun club, Durga Chowmuhani high power voltage electrical line had fallen down on the body of Jagannath Rishidas causing damage to both of his hands in the nature of permanent disablement? 3. Is the plaintiff petitioner suffered permanently disablement due to fatal accident, if so, whether he is entitled to get compensation by way of damage and if so, up to what extent compensation is payable? 4. To what other relief/relieves the plaintiff-petitioner is entitled to get?” The learned trial Court decreed the suit for a sum of rupees twelve lakhs. The TSECL filed an appeal before this Court being RFA No.11 of 2009. We had allowed the appeal because we found that the plaintiff had virtually led no evidence to prove his case. No eye witnesses had been proved and even the plaintiff did not step into the witness box. Only his mother had appeared and she was admittedly not an eye witness to the occurrence. We had allowed the appeal because we found that the plaintiff had virtually led no evidence to prove his case. No eye witnesses had been proved and even the plaintiff did not step into the witness box. Only his mother had appeared and she was admittedly not an eye witness to the occurrence. However, after setting aside the judgment and decree we had felt it proper to remand the case and the reasons for remand are contained in para-7 of the said judgment which reads as follows: “7. The plaintiff had initially filed the suit in 'forma pauperis'. He is a poor person and merely because of lack of proper legal advice he should not be made to suffer. Therefore, in the interest of justice though we set aside the judgment and decree of the learned trial Court we remand the case back to the learned trial Court for decision afresh, in accordance with law. The parties shall be at liberty to lead all evidence and the plaintiff shall be permitted to appear as his own witness and his statement shall be recorded in Court. We may also observe that in case the plaintiff appears in Court, the Court can also make oral observations about the actual disability which means not the extent of disability but the factual aspects which are apparent.” We had also issued certain other directions which are contained in Para-9 which read as follows: “9. The parties through their counsel are directed to appear before the learned trial Court on 19th November, 2015 and then the learned trial Court shall fix a date for evidence of the plaintiff, firstly in the month of December, 2015 and if one adjournment is required shall grant the plaintiff one adjournment and list the matter in January, 2016. Thereafter, the TSECL will be given two opportunities to lead evidence in February and March, 2016 and thereafter, arguments shall be heard and the case shall be disposed of latest by 31st May, 2016. The parties shall be at liberty to obtain the help of the Court i.e. they can summon the witnesses through the Court.” 3. Thereafter, the TSECL will be given two opportunities to lead evidence in February and March, 2016 and thereafter, arguments shall be heard and the case shall be disposed of latest by 31st May, 2016. The parties shall be at liberty to obtain the help of the Court i.e. they can summon the witnesses through the Court.” 3. After the case was remanded, the plaintiff filed an application for amendment on the first day fixed before the trial Court and by means of this amendment the date and time of accident was sought to be corrected from 19th October, 2005 at about 12.00 hrs. to 14th October, 2005 at about 2.45 p.m. This was the main amendment sought in the plaint. According to Mr. A. K. Bhowmik, learned senior counsel on going through the records especially the medical evidence it was discovered that the accident had actually taken place on 14th October, 2005 at about 2.45 p.m. and, therefore, this amendment was necessary. This amendment was strongly opposed by the other side and the learned trial Court has rejected this application. The first ground for rejecting the application is that the suit was filed on 16.02.2008 and since more than seven years have elapsed there is undue delay in filing the application. It was also held that the plaintiff had failed to exercise due diligence and should have raised the matter earlier. Lastly, the Court held that since the High Court had fixed a time bound programme to dispose of the suit the Court has no option but to reject the amendment application being devoid of merit. The relevant portion of the order reads as follows: “26.11.15. *****.Moreover, as per para-9 of the Judgment of the Hon’ble High Court, we are bound by the order of the Hon’ble High Court in respect of our stages of suit on fixed dates. The is a time bound program in this suit put by Hon’ble High Court and so we have no other option but to reject the amendment petition being devoid of merit by following the specific dictum of the judgment of the Hon’ble High Court. The proposed amendment will change the nature and character of the suit and there is a strong objection from the side of the defendant which is valid and justified.*******” 4. Ms. The proposed amendment will change the nature and character of the suit and there is a strong objection from the side of the defendant which is valid and justified.*******” 4. Ms. S. Deb Gupta has contended that there is not only undue delay but there is also lack of due diligence by the plaintiff and therefore, the application should be rejected. In support of her plea she has relied upon two judgments of the Apex Court i.e. (2008) 5 SCC 117 [Chander Kanta Bansal Vrs. Rajinder Singh Anand] and (2012) 2 SCC 300 [J. Samuel and others Vrs. Gattu Mahesh and others.] 5. At the outset, I may first deal with what has been observed by the learned trial Court with reference to the judgment of this Court. He has held that since the suit has to be disposed of in a time bound programme he had no other option but to reject the amendment application being devoid of merit. This is no ground to reject the application. If the application was otherwise meritorious merely because the High Court has fixed a time for disposal is no ground to dismiss the application. In the second part the learned trial Court says that the amendment will change the nature and character of the suit, I fail to understand how the change of the date and time from 19.10.2005 at about 12.00 hrs. to 14.10.2005 at about 2.45 p.m. changes the nature and character of the suit. All that is sought is to change the date and time of the accident. The cause of action may be changed but the nature of the suit does not change. The character of the suit remains the same. It continues to be a suit for damages. 6. We had in our earlier judgment also observed that the suit had been totally improperly drafted. We had not thought it fit to comment on the counsel but in a case of injuries the counsel had filed a suit under the Fatal Accident act. The plaintiff is a poor person. He is a rickshaw puller. He will have to rely upon his counsel with regard to the drafting of the plaint. The mistake may be of the counsel, may be a typographical mistake or may be even lack of interest by the counsel. The plaintiff is a poor person. He is a rickshaw puller. He will have to rely upon his counsel with regard to the drafting of the plaint. The mistake may be of the counsel, may be a typographical mistake or may be even lack of interest by the counsel. But the plaintiff would not gain anything by giving a wrong date and time of the accident. Now, all that is sought to be corrected is that the date and time of the accident is changed from 19.10.2005 at about 12.00 hrs. to 14.10.2005 at about 2.45 p.m. This in my opinion does not in any way change the nature or character of the suit. This brings us to the question as to whether the plaintiff has acted with due diligence or not? 7. Reliance has been placed by the respondents on the judgment of the Apex Court in Chander Kanta Bansal Vrs. Rajinder Singh Anand : (2008) 5 SCC 117 wherein the Apex Court dealing with due diligence held as follows: “16. The words "due diligence" has not been defined in the Code. According to Oxford Dictionary (Edition 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to one's work and duties, showing care and effort. As per Black's Law Dictionary (Eighth Edition), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edition 13A) "due diligence", in law, means doing everything reasonable, not everything possible. "Due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs. 17. It is clear that unless the party takes prompt steps, mere action cannot be accepted and file a petition after the commencement of trial. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit he so-called agreement. Even after his death in the year 98, the petition was filed only in 2004. As mentioned earlier, in the case on hand, the application itself came to be filed only after 18 years and till the death of her first son Sunit he so-called agreement. Even after his death in the year 98, the petition was filed only in 2004. The explanation offered by the defendant cannot be accepted since she did not mention anything when she was examined as witness. 18. As rightly referred to by the High Court in Union of India vs. Pramod Gupta (dead) by LRs and Others, (2005) 12 SCC 1, this Court cautioned that delay and laches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings.” Ms. S. Deb Gupta relies on the above observations to urge that since there is long delay and because the plaintiff did not even point out this mistake in the High Court, there is lack of due diligence. Each case has to be decided on its own merits. In the case before the Apex Court the parties were educated parties who owned joined property in an upper middle class locality of Delhi called Punjabi Bagh. They had divided the property and after the suit had been pending for more than 18 years the defendant had filed an application stating that some agreement had been entered into between the parties in the year 1982 i.e. four years prior to the filing of the suit and by means of the amendment it was sought that the agreement be brought on record and the suit be rejected because the rights of the parties had been determined by the agreement. In that case, the entire character of the defence of the defendant had changed. He was now bringing in a new defence that the parties by an agreement entered into prior to the filing of the suit had already settled the dispute between the parties. This could had been disclosed at the earlier stage and the trial had been pending for 18(eighteen) years. In my opinion this judgment has no applicability to the facts of the present case. [8] The second judgment has been relied upon by Ms. S. Deb Gupta is J. Samuel and others Vrs. Gattu Mahesh and others. : (2012) 2 SCC 300 . In my opinion this judgment has no applicability to the facts of the present case. [8] The second judgment has been relied upon by Ms. S. Deb Gupta is J. Samuel and others Vrs. Gattu Mahesh and others. : (2012) 2 SCC 300 . In this case the facts are that a suit for specific performance was filed and in the suit there was no averments made that the plaintiff had always be ready willing to perform their part of the agreement. It is a statutory requirement of law that in a suit for specific performance the plaintiff should always be ready and willing to perform his part of the contract. There also the parties were well educated. The plaintiff was one M/s. Jagath Swapna & Co. that is a partnership firm represented by a Managing Partner who had allegedly purchased property for almost twenty five lakhs rupees. When they filed a suit for Specific Performance of the contract and in the said suit no averment was made that they were ready to perform their part of the contract. It is in this context the Apex Court held as follows: “19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term `Due diligence' is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial. 20. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit. 21. In the given facts, there is a clear lack of `due diligence' and the mistake committed certainly does not come within the preview of a typographical error. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. The term typographical error is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code.” The facts of this case are starkly different. In this case we are dealing with a poor rickshaw puller. The fault, if any, was obviously of the counsel who originally represented the plaintiff. It is well settled law that no party should suffer for the fault of his counsel. The day when the matter was transferred from the High Court, the counsel who is now handling the case went through the file and before the date fixed for appearance before the trial Court the application for amendment was drafted and filed on the first day on which this Court had directed the parties to appear before the trial Court. I do not feel that the plaintiff in any way has acted without due diligence. 9. Accordingly, this petition as well as the amendment application are allowed. Therefore, only Issue No. 2 has to be recast and the date and time should be read as “14.10.2005 at about 2.45 p.m.” instead of “19.10.2005 at about 12.00 hrs.” Accordingly, the date and time in issue no.2 is changed. Rest of the issues will remain the same. As far as the prayer for change of the compensation amount from Rs.8,00,000/- and Rs.12,00,000 to Rs.12,64,000/- and Rs.12,64,000 are concerned that prayer cannot be allowed. Therefore, the total amount of claim shall be limited to Rs.12,00,000/-. It is however made clear that in view of the direction given in RFA 11 of 2009 the suit should be treated like a general suit under the law of torts. 10. I have been informed that the plaintiff has already led evidence and in that evidence he has stated the date of accident to be 14.10.2005 and the new time. Sri Bhowmik states that the statement of the plaintiff need not be required to be recorded again. 10. I have been informed that the plaintiff has already led evidence and in that evidence he has stated the date of accident to be 14.10.2005 and the new time. Sri Bhowmik states that the statement of the plaintiff need not be required to be recorded again. However, the TSECL if it so wants can re-call the plaintiff and his other witnesses for cross-examination because this amendment has only been allowed now. 11. Petition is disposed of in the aforesaid terms. No costs.