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2016 DIGILAW 448 (CAL)

Munnilal Shaw @ Sau v. Sanjay Kumar Agarwal

2016-05-20

INDRAJIT CHATTERJEE

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JUDGMENT : Indrajit Chatterjee, J. This is an application under Article 227 of the Constitution of India wherein the present petitioners/plaintiffs have assailed the order no. 32 dated 25th August, 2015 passed by the learned Civil Judge (Junior Division), 3rd Court, Howrah in Title Suit No. 401 of 2015 by which the learned trial court was pleased to reject the application filed by the present plaintiffs/petitioners dated 21st August, 2015 on the ground that if the proposed amendment is allowed, then it will change the nature and character of the suit. Mr. Mukherjee, the learned Senior Advocate, arguing on behalf of the petitioners submitted by taking me to the plaint vis-à-vis the proposed amendment to show that actually there was no scope to change the nature and character of the suit even if the amendment petition is allowed as by virtue of such amendment petition, the present plaintiffs/petitioners had tried to furnish better particulars. He took me to the amendment petition as filed to show item-wise the proposed amendment as regards the schedule of the property. He submitted that as per that amendment petition, the present plaintiffs/petitioners kept the “A” schedule property as a common area and did not try to grab that property. He submitted that the present amendment petition was filed in the year 2015 itself and there was no dilatory tactics on the part of the present petitioners plaintiffs. He further submitted that such an amendment application was necessary to end the lis between the parties. In counter to all these, it is submitted by Mr. Chaturvedi, the learned Advocate, appearing on behalf of the opposite party nos. 1 to 4 that one earlier amendment petition was filed before the trial court in connection with the same Title Suit on 13/08/2015 and as per order dated 21-08-2015, the said amendment petition was rejected being ‘not pressed’. Thus, he submitted that the present application under Order VI Rule 17 of the Code of Civil Procedure is the second application and it is the replica of the previous one filed by the plaintiffs. Thus, he contended that the second application is barred under Order XXIII Rule 1 of the Code of Civil Procedure. On merit, he submitted that as per the schedule as given in the plaint, the suit property is within the Bally Municipality, premises no. 105/17, Girish Ghosh Road, Ghusuri. Thus, he contended that the second application is barred under Order XXIII Rule 1 of the Code of Civil Procedure. On merit, he submitted that as per the schedule as given in the plaint, the suit property is within the Bally Municipality, premises no. 105/17, Girish Ghosh Road, Ghusuri. He also took me to the written statement jointly filed by the opposite party nos. 1 and 2 and jointly filed by the opposite party nos. 3 and 4 to convince this court that at prese3nt the suit property is in holding no. 105/17/4 of the said Municipality in respect of the Ward No. 22. Thus, he contended by taking me to the amendment petition that by virtue of the proposed amendment, the present petitioners are trying to establish their right over the “A” schedule property. He took me to paragraph 7(B) of the proposed amendment petition (running page no. 69) to say that the petitioners are trying to deny the title of the present opposite party nos. 1 to 4 in respect of the “A” schedule property by virtually challenging the registered instrument executed in favour of the defendant nos. 1 to 4. Learned Advocate further submitted that if the amendment is allowed, then it will not only change the nature and character of the suit but will also increase the ambit and scope of the litigation to the detriment of the opposite parties. He further supplemented his argument on this point by saying that as per the provision of Section 116 of the Indian Evidence Act, a tenant cannot challenge the title of the landlord. He took me to the order passed this court in connection with C.O. 3274 of 2015 dated 09-09-2015 wherein this court observed that “A” schedule property is a vast track of land whereas the plaintiffs claim is restricted to the properties described in schedule “B” to “F”. Thus, he submitted that it cannot be claimed that the present plaintiffs/petitioners have interest over the “A” schedule property. He further submitted that the aforesaid order has become final as it was not assailed before any higher forum. Learned Advocate cited a decision of the Apex Court as reported in (2002) 7 SCC 447 (C.V. Rajendran & Ors. Vs. N. M. Muhammed Kunhi) wherein the Apex Court held that in several stages of particular proceeding there may be res judicata. Learned Advocate cited a decision of the Apex Court as reported in (2002) 7 SCC 447 (C.V. Rajendran & Ors. Vs. N. M. Muhammed Kunhi) wherein the Apex Court held that in several stages of particular proceeding there may be res judicata. He cited this decision in support of his argument that the second application for amendment is barred by res judicata and that the decision of this Hon’ble High Court as passed in C.O. 3274 of 2015 will operate as res judicata in respect of the claim on the part of the petitioners/plaintiffs. He cited one single Bench decision of this court as reported in (2013) 4 WBLR (Cal) 914 wherein this court held that if by the proposed amendment the nature and character is changed, then such an application cannot be allowed. He extended his argument on this point by saying that by virtue of the proposed amendment, the plaintiffs are trying to deny the title of the present opposite party nos. 1 to 4 in respect of the “A” schedule property, even though the suit was filed only for declaration of tenancy right in respect of the “B” to “F” schedule property. It is further submitted by the learned Advocate for the opposite party nos. 1 to 4 by taking me to the order as passed in C.O. 3274 of 2015 that there this court “By a clever draftsmanship something more is claimed in prayer ‘b’ to the plaint which is not supported by any pleadings and/or in the statements”. In reply, Mr. Mukherjee submitted that the claim of the learned Advocate appearing on behalf of the other side that the amendment is barred in view of Section 116 of the Indian Evidence Act is unfounded because derivative title can very well be challenged under that Section of the Indian Evidence Act. He submitted that in the present facts and circumstances of the case, the present opposite party nos. 1 to 4 purchased the property from the defendant no. 5, i.e. the constituted attorney of the inducting landlord/owner, Nirmalya Sasmal. He submitted that it is the specific claim of the petitioners/plaintiffs that he was inducted as a tenant by the said landlord, Nirmalya Sasmal. Mr. Mukherjee cited a decision of the Apex Court as reported in (2004) 13 SCC 40 ( Ram Sahai Vs. 5, i.e. the constituted attorney of the inducting landlord/owner, Nirmalya Sasmal. He submitted that it is the specific claim of the petitioners/plaintiffs that he was inducted as a tenant by the said landlord, Nirmalya Sasmal. Mr. Mukherjee cited a decision of the Apex Court as reported in (2004) 13 SCC 40 ( Ram Sahai Vs. Ramanand And Others.) wherein the Apex Court held that addition of some property in the hotchpot of the plaint will not change the nature and character of the suit property. He also cited another decision of the Apex Court as reported in (2002) 3 SCC 605 ( Fritiz T.M. Clement and another Vs. Sudhakaran Nadar and another) wherein the Apex Court held that the plaint is ill-drafted with cryptic and inaccurate averments and lacking any relevant particulars, then the amendment may be made to elaborate and clarification of the plaintiff’s claim and sought before the commencement of the trial may be allowed. So long I was in the midst of hearing of arguments advanced by the learned Advocates appearing on behalf of the parties. I have gone through the impugned order. I have also perused the application under Order VI Rule 17 of the Code of Civil Procedure and also the objections filed by these opposite parties. Before I travel further, I may like to concentrate more on the prayer portion of the amendment petition. As per the original plaint, the prayer (a) was ; “(a) For a declaration that the Plaintiff as bonafide premises tenants have got all and every right to preserve and protect their respective “B” to “F” Schedule mentioned tenanted properties”. If this amendment petition is allowed, then this prayer will run thus :- “For a declaration that the Plaintiff as bonafide premises tenants have got all and every right to preserve and protect their respective “B” to “F” Schedule mentioned tenanted properties and also privilege of enjoying the common area of “A” schedule property”. If this amendment petition is allowed, then this prayer will run thus :- “For a declaration that the Plaintiff as bonafide premises tenants have got all and every right to preserve and protect their respective “B” to “F” Schedule mentioned tenanted properties and also privilege of enjoying the common area of “A” schedule property”. (the bold portion indicates the proposed amendment) As per the amendment petition, after this prayer (a) another prayer is to be added (aa): “(aa) For a more declaration that the entirety of the “A” schedule property are not in occupation and possession of the plaintiffs for their use and occupation and also for egress and ingress and also as the open courtyard being and essential privilege and amenity attached with the respective tenanted premises and meant for user of all the occupiers of the “A” schedule suit holding.” The prayer (b) of the original plaint as it is there in page 15, the proposed amendment will make it as follows :- (B) For a more declaration that the defendant, their men agents servants and other associates have got no manner of right, title interest to interfere into the “A” Schedule property and disturb the plaintiffs in the peaceful enjoyment of their respective tenanted “B” to “F” Schedule mentioned properties and also the privilege of enjoying the common area of “A” schedule property. (the bold portion indicates the proposed amendment) As per the amendment petition, another prayer is to be inserted after Clause (b) of the prayer portion; “(bb) For a further declaration that the defendants have no right title interest or authority to disturb peaceful possession of the plaintiffs in respect of their tenanted properties as fully described in Schedule B, F including common area of the property as fully described in Schedule A herein below on the basis of forged manufactured document of title executed or registered after the death of the original owner”. The schedule A of the plaint has also been prayed for to be amended. After amendment schedule A of the plaint will be like this, “All piece and parcel of Bally Municipality premises no. 105/17 Girish Ghosh Road, Ghusuri under the Ward no. 22 of Bally Municipality, District – Howrah………………………… but physically the same is 10 (ten) sq. ft. The schedule A of the plaint has also been prayed for to be amended. After amendment schedule A of the plaint will be like this, “All piece and parcel of Bally Municipality premises no. 105/17 Girish Ghosh Road, Ghusuri under the Ward no. 22 of Bally Municipality, District – Howrah………………………… but physically the same is 10 (ten) sq. ft. more which is inclusive of the tenanted “B” to “F” Schedule properties as well as other rooms of other occupants and also common areas and courtyards and passage of the plaintiffs and other occupants of the said holding”. (the bold portion indicates the proposed amendment) Thus, if the proposed amendment is allowed then practically the plaintiffs tenants will make inroad over the non-tenanted portion to establish in future their claim over the said property. Thus, it is clear that the proposed amendment will create a stage favourable to the petitioners from where they can generate interest over the non-suit property. Schedule “A” is a vast tract of land and “B” to “F” are the tenanted portion which are all within the “A” Scheduled property. No extra right over the “A” Schedule property was claimed in the plaint except the right to use privy and then how can they introduce such fact by way of an amendment petition. Regarding the point of res judicata both as regards amendment petition and the order of this Court as passed in CO no.3246 of 2015 this Court is of the opinion that the present application under Order 6 Rule 17 of the CPC cannot be held to be barred on the point of res judicata as the prior application in this regard was not disposed of on merit and it was dismissed being not pressed. However, the decision of this Court which was passed on merit in connection with CO no.3274 of 2015 will certainly operate as res judicata in respect of the findings made by that court. In that Civil order that court further held that ‘A’ schedule is a vast tract of land where the plaintiffs’ claim is restricted to the properties described in schedule ‘B’ to ‘F’. Thus the court held that A schedule property was not within the arena of the tenanted portion. In that Civil order that court further held that ‘A’ schedule is a vast tract of land where the plaintiffs’ claim is restricted to the properties described in schedule ‘B’ to ‘F’. Thus the court held that A schedule property was not within the arena of the tenanted portion. That court further observed “by a clever draftsmanship something more is claimed in prayer ‘B’ to the plaint which is not supported by any pleading or in the statements……….. The plaintiffs themselves have not claimed any right over the properties described in schedule ‘B’ to ‘F’ and averments which would be deciphered from paragraph 11 of the plaint is that they in dark whether the plaintiffs have any right in respect of the ‘A’ schedule property”. This being hit by res judicata the petitioners tenants cannot include ‘A’ schedule property within the arena of the tenanted portion. This Court is satisfied that the decision of the Apex Court as passed in C. V. Rajendran & Ors. (supra) will squarely apply in this case. However, the decision cited by Mr. Mukherjee as delivered in Ram Sahai (supra) will not apply in this case as that decision was delivered in connection with one partition suit. The decision of the Apex Court in Fritiz T.M. Clement (supra) as cited by Mr. Mukherjee will also not apply in this case as in the instant case it cannot be said that the original plaint was ill-drafted with cryptic, in accurate averments and lacking in relevant particulars. Giving my anxious thought on the plaint I can say that the plaint was very cleverly drafted to claim something more. As regards the theory of estoppel of tenant as envisaged in Section 116 of the Indian Evidence Act this Court is satisfied that as the present opposite party nos. 1 to 4 purchased the suit property from the previous owner, the present petitioners tenants can very well dispute the title because the title is derivative one. Thus, the argument of Mr. Chaturdevi on this point cannot be accepted. Thus, in view of the observations made so long I am satisfied that the learned trial court rightly held that if the proposed amendment is allowed then it will change the nature and character of the suit. This being so there is no reason to interfere with the order passed by the learned trial court. The order is hereby affirmed. Thus, in view of the observations made so long I am satisfied that the learned trial court rightly held that if the proposed amendment is allowed then it will change the nature and character of the suit. This being so there is no reason to interfere with the order passed by the learned trial court. The order is hereby affirmed. The revisional application is dismissed on contest as against the opposite party nos. 1 to 4 and dismissed ex-party against the respondent no.5. There will be no order as to costs. Office is directed to transmit a copy of this order to the learned trial court. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.