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2016 DIGILAW 522 (CAL)

Iswar Lakshmi Debi v. Kaberi Sur

2016-06-29

INDRAJIT CHATTERJEE

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JUDGMENT : Indrajit Chatterjee, J. 1. The matter is taken up for hearing. Heard the learned Advocate appearing on behalf of the petitioners and also the learned Advocate appearing on behalf of the opposite parties. 2. I have gone through the order of this Court dated 27-04-2016 as regards maintainability of Title Suit No. 91 of 2010 before the learned Trial Court vis-à-vis the Indian Trust Act of 1882. 3. On this point, it is submitted by the learned Advocate appearing on behalf of the petitioners that in this revisional application, this Court should not consider that aspect which will be taken care of by the learned Trial Court. The learned Trial Court to consider whether the present suit pending before it is barred under the provision of Indian Trust Act, 1882. 4. In this application, the petitioners have assailed the order dated 27-08-2015 passed by the learned Civil Judge (Junior Division), 1st Court at Sealdah, South 24-Parganas, in Tile Suit No. 91 of 2010 wherein the learned Trial Court was pleased to reject one application as filed by the petitioners under Order VI Rule 17 of the C.P.C. read with Section 151 of the said Code on the ground that actually such amendment was not necessary for effective adjudication of the dispute between the parties. The learned Trial Court also held that the above facts were all along in the knowledge of the plaintiffs and allowing the application will virtually mean de novo trial of the suit. 5. It may be noted that the suit was filed on 18-05-2010 and it is ripe for hearing of argument. It may further be noted that the questioned amendment petition was filed before the learned Trial Court on 16-01-2015 regarding the incidents which allegedly happened all after the filing of the litigation continued upto 2014. As per that amendment petition which is in running page nos. 31 and 32, the petitioners/plaintiffs wanted to bring before the court some facts to prove mischief and nuisance over the suit property caused by the defendant/opposite parties for their personal gain. 6. It is submitted by Mr. Biswas that as per decisions, referred to below, the Court has ample power to allow any petition for amendment at any state of the proceeding to end the litigation effectively and to avoid multiplicity of proceeding. 7.1. 6. It is submitted by Mr. Biswas that as per decisions, referred to below, the Court has ample power to allow any petition for amendment at any state of the proceeding to end the litigation effectively and to avoid multiplicity of proceeding. 7.1. The decisions relied upon by the petitioners are as flows reported in (2009) 10 SCC 84 (Revajeetu Builders & Developers vs. Narayanaswamy & Sons & Ors.), a Two-Judge Bench decision judgement of which was delivered on 9th October, 2009 wherein the Apex Court held that basic test which must govern grant or refusal of amendment is whether such amendment is necessary for determination of real question in controversy or for proper and effective adjudication of the case. 2. C.O. No. 3129 of 2009 (Jaharlal Maity & Ors. Vs. Samar Nath Giri & Ors.) wherein the Single Bench of this Court relying on the decision of the Apex Court, referred to above, allowed the amendment petition on the ground that the Court must take note of the subsequent events which are material for the purpose of determination of the rights of the parties in the suit and also to minimize the litigation. 3. C.O. No. 1323 of 2013 wherein a Single Bench of this Court relied upon a decision of Baldev Singh & Ors. Vs. Manohar Singh & Anr. as reported in (2006) 2 SCC 498 held that the commencement of trial is no factor in allowing or rejecting one application under Order VI Rule 17 of the C.P.C. 4. AIR 2004 SC 4102 (Pankaja & Anr. Vs. Yellappa (D) by L.Rs. & Ors.) wherein the Apex Court held that even though the amendment sought for was made after substantial delay but it can be allowed in appropriate cases if that sub-serves cause of justice and avoids further litigation. 5. (4) CHN (CAL) 3 (Sk. Akbar Ali vs. Gayatri Ghosh) wherein the Single Bench of this Court held that amendment may be allowed to minimize litigation; and 6. C.O. No. 49 of 2012 wherein the Single Bench of this Court also relied upon the decision of the Apex Court as reported in Revajeetu Builders & Developers (supra) and allowed the amendment petition. Akbar Ali vs. Gayatri Ghosh) wherein the Single Bench of this Court held that amendment may be allowed to minimize litigation; and 6. C.O. No. 49 of 2012 wherein the Single Bench of this Court also relied upon the decision of the Apex Court as reported in Revajeetu Builders & Developers (supra) and allowed the amendment petition. Learned Advocate appearing on behalf of the petitioners has also cited three decisions of the Apex Court as reported in (2008) 3 SCC 717 (Usha Devi vs. Rijwan Ahamd & Ors.) (paragraphs 12-16), (2009) 2 SCC 409 (Vidyabai & Ors. Vs. Padmalatha & Anr.) (paragraphs 14-15) and also (2005) 4 SCC 480 (Kailash vs. Nanhku & Ors.) (paragraph-13). He took me to the amendment petition which is running in page nos. 31-32 to convince this Court that the fact going to be introduced before the learned Trial Court happened after the suit was filed in the year 2013 and the theory of due diligence as provided in the proviso attached to Order VI Rule 17 of the C.P.C. cannot apply in this case. He further submitted that the paragraph which is to be introduced is regarding filing of some petitions or cases before the police regarding the mischievous activities of the present opposite parties. 8. On behalf of the opposite parties, two decisions of the Apex Court have been relied upon being – 1) AIR 2005 SC 3353 (three Judge Bench decisions) (Salem Advocate Bar Association, Tamil Nadu vs. Union of India) and 2) (2006) 12 SCC 1 (Ajendraprasadji N. Pandey & Anr. Vs. Swami Keshavprakeshdasji N. & Ors.) and also the decision of our High Court as reported in 2014(1) ICC 277 (Faroja Bibi & Ors. Vs. Sk. Mustafa Ali & Ors.) 9. I have considered all these decisions. The crux of these decisions is that the courts will not allow the amendment if the trial has commenced, unless the court comes to a conclusion that in spite of due diligence the party could not raise the matter before the commencement of trial. 10. This Court is not unmindful of the submission made by the learned Advocate on behalf of the opposite parties that in this case, the argument has already been started and if this amendment petition is allowed, it will delay the further proceeding of this case. 10. This Court is not unmindful of the submission made by the learned Advocate on behalf of the opposite parties that in this case, the argument has already been started and if this amendment petition is allowed, it will delay the further proceeding of this case. This Court is also not unmindful of the submission made by the learned Advocate appearing on behalf of the opposite parties that at least in the year 2011, the present petitioners were aware regarding the filing of four cases and in the year 2013, they were aware regarding the filing of another M.P. case and in the year 2014, they were also aware regarding the filing of another M.P. case but this application was filed on 6th January, 2015. 11. Thus, it appears that as regards a portion of the amendment that these petitioners were not diligent to file the application instantly at least in the year 2013. Myself is talking about Case No. C-596 of 2010, M.P. Case No. 617 of 2011, M.P. Case No. 2547 of 2011, M.P. Case No. 572 of 2011 and M.P. Case No. 681 of 2013. 12. Thus, applying the clause of “due diligence”, this Court is at one with the learned Trial Court regarding the rejection of the petition for amendment in respect of those five cases. The amendment sought for to include in the plaint, M.P. Case No. 806 of 2014 stands allowed. 13. Be it noted that the proposed amendment is rejected in respect of the cases instituted in between 2010 to 2013. 14. This Court is aware of this fact that the suit is at the stage of hearing of argument and already on three days, arguments have been heard. Thus, the present petitioners must be compensated financially. 15. While allowing this revisional application in part, this Court imposes a cost of Rs. 5000/- to be paid by the present petitioners to the learned Advocate of the opposite party before the Trial Court within seven days from the receipt of the copy of this order by the learned Trial Court. 16. It may be noted that if the cost is not paid, then this revisional application be treated as dismissed. 17. After the cost is paid, the plaint be amended accordingly. 18. Opportunity will be given to the opposite parties to file additional W/S and thereafter, P.Ws. 16. It may be noted that if the cost is not paid, then this revisional application be treated as dismissed. 17. After the cost is paid, the plaint be amended accordingly. 18. Opportunity will be given to the opposite parties to file additional W/S and thereafter, P.Ws. may be permitted to be recalled only to introduce the fact regarding the filing of M.P. Case No. 806 of 2014 and not on other point whatsoever. Opportunity be also given to the opposite parties to cross-examine the P.Ws. The opposite parties will also get the opportunity to examine all the three D.Ws on recall, if it is so advised. 19. Office is directed to communicate this order to the learned Trial Court. 20. Parties will also be at liberty to communicate this order to the learned Trial Court for early communication. 21. Photostat certified copy of this order, if applied for, be given to the parties on priority basis.