Research › Search › Judgment

Calcutta High Court · body

2016 DIGILAW 29 (CAL)

Ram Niwas Agarwal v. Nageswar Singh

2016-01-11

ASHOKE KUMAR DASADHIKARI

body2016
JUDGMENT : Ashoke Kumar Dasadhikari, J. Order impugned dated 4th June 2010 passed by the learned Civil Judge 3rd (Junior Division) Siliguri refusing the prayer for amendment sought for by the plaintiff to disclose the sale deed being no. 4484 of 1964 is under challenge in this revisional application. 2. Mr. De, learned counsel appearing for the plaintiff/petitioner submits that suit was filed for declaration of right, title and interest and also permanent injunction against the defendants/opposite parties. Suit was proceeding and at the argument stage, the plaintiff after through search, found out that a registered sale deed of 1964 relates to 50% of land which according to Mr. De goes in favour of the plaintiff. Mr. De submits although at a belated stage but the deed of 1964 would be very relevant for deciding the main issue raised in the proceeding. He submits limitation is not a bar to supply better particulars for proper disposal of the suit and/or deciding the issues framed. He submits there are catena of decisions allowing such type of amendments. He submits that if the amendment is not allowed the plaintiff will have to file another suit which would increase litigation. He also submits that by allowing such amendment, the nature and character of the suit will not change. 3. He further submits that there are judgments in support his client's contention. He cited one decision reported in (2013) AIRCC 1192 (Bom) (Shakuntala v. Ramdas). He also cited another decision reported in 2015 SCC Online SC 488 (Mahila Ramkali Vevi & Ors. v. Nandram (D) Thr. LRs & Ors.). He submits that order impugned be set aside and for the ends of justice and proper adjudication and disposal of the issues framed the amendment be allowed. 4. Mr. Ghosh, learned counsel appearing for the defendant/opposite parties, on the other hand, submits that the suit is at the stage of argument and defendants have concluded argument. He submits that the plaintiff's stand was specific in their plaint which was dealt with. However, he submits at this stage, if this amendment is allowed retrial would be necessary and his client would be prejudiced. He also submits in such circumstances the amendment sought for has rightly been rejected by learned court below. 5. He cited one decision in support of his submission, reported in 2008 (7) SBR 430 (Rajkumar Gurawara (Dead) Thr. However, he submits at this stage, if this amendment is allowed retrial would be necessary and his client would be prejudiced. He also submits in such circumstances the amendment sought for has rightly been rejected by learned court below. 5. He cited one decision in support of his submission, reported in 2008 (7) SBR 430 (Rajkumar Gurawara (Dead) Thr. LRs v. M/s. S.K. Sarwagi & Co. Pvt. Ltd. & Anr.) and another decision reported in (2006) 12 SCC 1 (Ajendra Prasadji N. Pandey & Anr. v. Swami Keshavprakeshdasji N. & Ors.). 6. Mr. Ghosh submits that in the instant case the amendment was not allowed by the trial court. According to him, there is no illegality and/or irrationality in the order passed and this court should not interfere with the order. 7. Considered the submissions made by the learned counsel appearing for the respective parties. This court perused the amendment sought for as regards the registered deed of 1964 which was found out by the plaintiff/petitioner claiming right, title and interest over the property, in question, has a bearing so far 50% of the disputed property, in question. This document which was found at the argument stage is necessary for deciding the issue, in controversy. However without going to the merits of the matter, this court is of the view that if certain facts or documents which are found out even at the argument stage or thereafter, no plea of delay should stand in the way when the amendment prayed for are nothing but better particulars relevant and necessary for proper disposal of the issues involved. In this regard it would be very relevant to quote the amendment sought for which reads as follows : At page 2 after paragraph I it is necessary to incorporate/add a new paragraph I-A and to be reads as follows : "That it is submitted that after long continuous searching sincerely and diligently the plaintiff has been able to trace out the reference of said documentary evidence in the month of February 2010 and thereafter he applied for certified copy of a Sale Dee, being no. 4484 for the year 1964 in the office of the District Sub-Registrar at Darjeeling. 4484 for the year 1964 in the office of the District Sub-Registrar at Darjeeling. And, after getting the said certified copy of the said Sale Deed, it is ascertained that Sri Bipin Singh and his brothers including Sri Gurpin Singh had purchased a portion of the said residue land measuring 4.87 ½ including the suit plot from one Sri Tikendrajit Mukherjee. And, it is further ascertained that said Usha Rani Bhattacharjee disposed of said 50% of land measuring 13.57 acres i.e. 6.79 acres to said Sri Tikendrajit Mukherjee by a Sale Deed being no. 2907 for the year 1960." 8. Further if this amendment is not allowed, then there would be another suit and there would be multiplicity of the proceedings. There are catena of decisions even at the appellate stage amendments are allowed since required for deciding the issue involved. 9. In the instant case 50% of the area which was transferred by a sale deed of 1964 which was found out by the plaintiff at the argument stage, the prayer for amendment is based on that. This court is of the view since document is very much relevant and have a bearing in the instant case for deciding the issue, the plea taken by Mr. Ghosh's client is not acceptable. There are catena of decisions allowing amendments for proper disposal of the suit and to avoid multiplicity of proceedings. 10. In that view of the matter, it appears to this court that the order impugned passed by the learned court below is erroneous in law and suffers from material illegality and/or irregularity. Order impugned is set aside. Amendment sought for by the plaintiff on the basis of the sale deed of 1964 is allowed by this court. Plaintiff/petitioner is permitted to file amended copy of the plaint by two weeks from date. Opposite parties are permitted to file additional written statement by ten days thereafter. 11. The learned court below is directed, as prayed by Mr. Ghosh, learned advocate for the opposite parties on the particular issue relating to the document itself, to dispose of the suit within six months from the date of filing additional written statement without giving any unnecessary adjournments to either of the parties and if it is necessary day to day trial be held. This direction is peremptory. Ghosh, learned advocate for the opposite parties on the particular issue relating to the document itself, to dispose of the suit within six months from the date of filing additional written statement without giving any unnecessary adjournments to either of the parties and if it is necessary day to day trial be held. This direction is peremptory. However, parties would be at liberty to make prayer for filing an application disclosing the direction given so that the suit should be expedited before the learned court below. Plaintiff/petitioner is directed to communicate the gist of the order and learned court below is to proceed on that basis without waiting for the certified copy of this order. Revisional application is disposed of.