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2016 DIGILAW 642 (CAL)

Javed Rehman Vohra v. K. R. Jayram

2016-08-16

SIDDHARTHA CHATTOPADHYAY

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JUDGMENT : Siddhartha Chattopadhyay, J. This instant revisional application is filed challenging the order dated 16.05.2015 passed in Money Suit No. 561 of 1992 wherein the defendant/petitioner’s application under Order VI Rule 17 has been rejected. 2. According to the petitioner/defendant the present plaintiff/opposite party had filed an application before the learned Tribunal Judge, West Bengal under provision of Industrial Dispute Act. On 07.08.2008 the said industrial tribunal published an award in favour of the plaintiff/opposite party. Against the said order of Judge, Industrial Tribunal he has preferred a writ application before this Court bearing No. W.P. 1445 (W) of 2009 and the Hon’ble Court has been pleased to direct the employer to pay Rs. 4,00,000/- to the plaintiff/opposite party towards full and final settlement of the claim. On 26.06.1992 the present opposite party received Rs.30,000/- from the petitioner as a loan promising to pay the said amount without interest by instalments and granted receipt in his favour. But, thereafter, the plaintiff absented himself from reporting his duty for about 374 days. A criminal case was initiated against him and on 27.04.1992 learned C.M.M. Calcutta has discharged the defacto complainant. Accordingly, the proceeding was dropped. The plaintiff never suffered any kind of pain either mentally or physically for the said case filed by the present petitioner/defendant. Ultimately, the plaintiff/opposite party left the service. Disclosing this episode the plaintiff/opposite party has filed a malicious prosecution against the defendant/petitioner. The present petitioner/defendant has filed an application under Order VI Rule 17 on the ground that he wanted to incorporate subsequent certain facts in the written statement by way of amendment but that has been disallowed by the learned Court below. 3. At the time of hearing, learned Counsel appearing on behalf of the defendant/petitioner has submitted that those amendments are required and he should be given an opportunity to lead evidence. 4. As against this, learned Counsel appearing on behalf of the plaintiff/opposite party contended that such an issue was already disposed of by a Co-ordinate Bench of this Court in connection with C.O. 1048 of 2011. It appears from the impugned order passed by the learned Court below that he persuaded himself to obey the order of the High Court passed on 24.04.2015 in C.O. 1048 of 2011. 5. It appears from the impugned order passed by the learned Court below that he persuaded himself to obey the order of the High Court passed on 24.04.2015 in C.O. 1048 of 2011. 5. At the time of hearing, learned Counsel appearing on behalf of the opposite party has referred to the decisions reported in (2002) 7 Supreme Court Cases 447 (C.V. Rajendran & Anr. Vs. N.M. Muhammed Kunhi), AIR 2004 Supreme Court 2186 (Escorts Farms Ltd., Vs. Commissioner, Kumanon Division, Nainital & Ors.), (2005) 1 Supreme Court Cases 444 (U.P. State Road Transport Corporation Vs. State of U.P. & Anr.), AIR 2005 Himachal Pradesh 21 (Jeet Ram Kishore Vs. Sunder Singh), AIR 2005 Supreme Court 3353 (Salem Advocate Bar Association Vs. Union of India). On perusal of the decisions cited by the plaintiff/opposite parties it appears to me that the Hon’ble Apex Court had come to a conclusion that belated amendment should not be allowed if any other legal right has been accrued to the adversary. It is also accepted principles of law that after the amendment of Code of Civil Procedure the party seeks for amendment has to show his due diligence. But that part is not applicable here on the ground that the suit was initiated in the year 1992, when there was no amendment of Code of Civil Procedure. 6. At the time of hearing, learned Counsel appearing on behalf of the petitioner has cited the decisions reported in (2015) 13 Supreme Court Cases 132 (Mahila Ramkali Devi & Ors. Vs. Nandram (Dead) Through Legal Representatives & Ors.). On perusal of the same it appears to me that intention of the Court should be to give relief to the party seeking amendment. 7. Be that as it may, in this present context I am of the view that the learned Court below was totally guided by the direction passed by the Co-ordinate Bench of this Court in connection with C.O. 1048 of 2011. But one thing that has been lost sight of by the Court below i.e. the Co-ordinate Bench has given a liberty to the petitioner/defendant to lead the evidence of his documents which are ‘public documents’. Therefore, the defendant/petitioner shall have the liberty to amend his written statement so far as ‘public documents’ are concerned. But one thing that has been lost sight of by the Court below i.e. the Co-ordinate Bench has given a liberty to the petitioner/defendant to lead the evidence of his documents which are ‘public documents’. Therefore, the defendant/petitioner shall have the liberty to amend his written statement so far as ‘public documents’ are concerned. On perusal of the amendment application (Annexure P4), I find that he has sought for amendments on many aspects excluding the public documents. Therefore, having regard to the facts and circumstances of this case, I am of the view that the proposed amendment should be allowed in a limited manner. Para 31(a), 31(b), 31(c), 31(d), 31(e), 31(h) should be allowed and be incorporated in the written statement because these are related to ‘public documents’ but in respect of other points as mentioned in the petition under Order VI Rule 17 of the Code of Civil Procedure such as 31(f), 31(g), 31(i), 31(j), 31(k), 31(l), 31(m) are rejected. 8. Accordingly, this revisional application is allowed in part. The learned Court below shall give an opportunity to amend the written statement to file additional written statement only on the points mentioned above. With this direction, this revisional application stands allowed in part. 9. Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law. 10. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.