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2016 DIGILAW 742 (CAL)

Bikash Chandra Nandy v. Dharmadas Paul

2016-09-23

HARISH TANDON

body2016
JUDGMENT : Harish Tandon, J. This revisional application is directed against the order no. 186 dated 29th January, 2016 passed by the learned Civil Judge (Junior Division), Additional Court, Asansol in connection with Title Suit No. 74 of 2010, by which an application for amendment of the plaint is rejected. 2. The suit for eviction of a monthly tenant was filed way back in the year 1997 before the learned Civil Judge (Junior Division), Asansol and was numbered as Title Suit No. 76 of 1997, inter alia, on the ground of default in payment of rent, addition and alteration, damage caused to the property by keeping the premises under lock and key for a considerable period of time and reasonable requirement. 3. No doubt it is true that the said suit is pending since last two decades and have not reached to its logical end as yet. The evidence of both the parties were recorded and the suit was posted for argument in the year 2014. An application for amendment was taken out by the petitioner at such stage which was allowed by the Trial Court. The tenant/opposite party did not challenge the said order by moving higher up and in fact filed the additional written statement after the amendment was carried out in the plaint. Since the new facts were introduced by way of an amendment, a supplementary affidavit as to examination-in-chief was filed by the petitioners. It was disclosed therein that it has been recently brought to the notice of the petitioner that the defendant owns holding no. 13 B.C. Road within Raniganj Municipality and is running a business of consumer goods in different names. It is further disclosed that he or his family members have another holding, where businesses are carried out by them and, therefore, there is no need of the suit premises to be kept under lock and key by the defendant/opposite party for a considerable period of time. 4. Naturally once such disclosure came, it prompted the tenant/opposite party to react to it and he took out an application to expunge those statements from the said affidavit, as those statements are beyond the pleading. 5. The Court found the assertion of the tenant/opposite party to be correct and without looking into the provisions contained under the Code of Civil Procedure, expunged the said statements from the said affidavit. 6. 5. The Court found the assertion of the tenant/opposite party to be correct and without looking into the provisions contained under the Code of Civil Procedure, expunged the said statements from the said affidavit. 6. The petitioners were thereafter advised to bring those facts in the pleading by way of an amendment. The tenant/opposite party opposed the said application by taking a plea that such amendment has been taken out at the stage of argument and once the Court has expunged those statements from the affidavit as to examination-in-chief, the petitioners are trying to fill up the lacunae by introducing those statements in the plaint. The Trial Court proceeded to dismiss the said application firstly on the ground that the suit is pending for more than two decades and the evidence of the respective parties was complete in the year 2014; secondly since an earlier application for amendment of the plaint was allowed at the stage of argument, the petitioners ought to have incorporated those facts in the said application and having not done so the conduct of the petitioners is such that they wanted to drag and delay the disposal of the suit. 7. The petitioners have assailed the said order of rejection of the application for amendment before this Court. 8. The learned advocate for the petitioners submits that the proposed amendment is nothing but an elucidation of facts already pleaded in the plaint, which came to the knowledge of the petitioners subsequent to the application for amendment having filed earlier and, therefore, the Court below should not have rejected the application solely on the ground that the petitioners are dragging and/or delaying the disposal of the suit and are trying to fill up the lacunae. 9. It is further submitted that those facts are necessary for complete and effective adjudication of the issues involved in the suit and the provision under Order 6, Rule 17 of the Code of Civil Procedure does not put any fetter on a party to proceed to apply for amendment at any stage of the suit. 10. According to the learned advocate for the petitioners the ground of delay is not the sole factor for dismissal of an application for amendment and relies upon a decision of the Supreme Court rendered in case of Andhra Bank v. ABN Amro Bank N.V. & Ors. reported in (2007) 6 SCC 167 . 11. 10. According to the learned advocate for the petitioners the ground of delay is not the sole factor for dismissal of an application for amendment and relies upon a decision of the Supreme Court rendered in case of Andhra Bank v. ABN Amro Bank N.V. & Ors. reported in (2007) 6 SCC 167 . 11. On the other hand, the learned advocate appearing for the opposite party vehemently opposes and submits that once the statements are expunged from the affidavit as to examination-in-chief, it cannot be introduced in the pleading so as to defeat the purport and effect of the said order. He further submits that though the delay cannot be the ground for rejection of an application for amendment, but the Court should be more cautious and vigilant when an amendment is sought at an advanced stage of the suit and if there is no explanation for such delay, the Court should refuse the party to amend the pleading. 12. To buttress the aforesaid submissions, the learned advocate for the opposite party relies upon a decision of the Co-ordinate Bench in case of Abdul Rashid Munshi v. Tazema Bibi reported in 2016 (1) CHN(Cal) 467. It is further submitted that the introduction of the proposed statements by way of an amendment would take away the right accrued to the defendant/opposite party by lapse of time and, therefore, the Court should not permit the petitioners to have the plaint amended. 13. Lastly it is submitted that the proposed amendment is nothing but to fill up the lacunae and, therefore, the Trial Court had not committed any error in dismissing the said application. 14. As indicated above the application for amendment of the plaint was rejected on two grounds; namely the petitioners are trying to drag the litigation and to fill up the lacunae. There is no other ground assigned by the Trial Court in rejecting the said application for amendment. 15. Order 6, Rule 17 of the Code of Civil Procedure as it stood prior to the amendment having brought in the year 2002 conveys an express legislative intent that the Court may at any stage of the proceeding allow any of the parties to alter or amend the pleading in the manner and on such terms as may be just for the purpose of determining the real question in controversy between the parties. The said provision has two limbs; the first one is discretionary and the other is mandatory. 16. Once the Court exercises discretion, it has no other option but to allow the amendment on such terms as may be just and proper. The factor, which should bear in mind in dealing with an application for amendment, is whether such amendment is necessary for the purpose of determining the real questions in controversy between the parties. The questions varies from case to case and, therefore, depending upon the facts involved therein. It is open to the Court to consider whether the same is necessary for determining the questions in controversy so as to minimise the litigation and to achieve the avoidance of multiplicity of proceedings. 17. The expression "at any stage" imbibes within itself the stage between the presentation of the plaint and the delivery of judgment. There are umpteen number of judgments wherein it has been laid down that if the amendment is taken out at a belated stage of the proceeding, the Court should be more cautious and circumspect in permitting any party to alter or amend the pleading. 18. The conduct of the parties during the proceeding is also one of the relevant factors, but cannot be said to be the sole factor. After all, it is the conscience of the Court, which is required to be satisfied whether the facts proposed to be introduced by way of an amendment have any impact or relevancy on the issues or the questions involved in the suit. The Court permits a party to bring the subsequent events in the pleading in the event it is satisfied that the same is required to avoid multiplicity of proceedings and to decide the questions completely and effectively. However, the Court should be rigid when a party intends to withdraw the admission made in the pleading or intends to introduce such facts and the reliefs based thereupon if the independent suit on the aforesaid facts is palpably barred by limitation. The Court should permit the party to alter or amend the pleading, if it is mere elucidation of facts already pleaded in the pleading. 19. There is no quarrel to some what settled proposition of law that the Court should be more liberal in allowing an amendment of the written statement than the plaint. The Court should permit the party to alter or amend the pleading, if it is mere elucidation of facts already pleaded in the pleading. 19. There is no quarrel to some what settled proposition of law that the Court should be more liberal in allowing an amendment of the written statement than the plaint. The aforesaid proposition of law cannot be construed so as to reject the application for amendment of the plaint, as a stricter view is required to be adopted. If such a strict approach is shown by the Court, all the meritorious matters would be dismissed and the lis is brought to an end on technical grounds. 20. The decision rendered by the Supreme Court in case of Andhra Bank (supra) is not applicable as the facts are completely different than the present case. Though the parity of facts to some extent are relevant in applying the ratio laid down therein, yet if the ratio can be sufficiently culled out therefrom and is of universal nature, there is no difficulty in applying the same. 21. The ratio laid down in the said Report is that the delay alone cannot be a factor for dismissal/rejection of an application for amendment. Even in case of Abdul Rshid Munshi (supra) it is not laid down in absolute term that the Court is denuded of any power to allow the party to alter or amend the pleading at a later stage of a proceeding. What has been held therein that if there is gross delay in taking up an application for amendment without any explanations being offered, it may in some cases invites the Court to reject the said application. 22. In the instant case the earlier application for amendment was filed at the stage of argument and the Court permitted the plaintiff/petitioner to incorporate two paragraphs, namely paragraph no. 5(b) and 6(a) in the plaint and the said application was allowed on 4th December, 2014. 23. In the aforesaid paragraphs the petitioner wanted to incorporate the necessary facts relating the ownership of the suit premises and recording of name in the Record of Rights. By the said proposed amendment the petitioner was also permitted to introduce the factum of huge amount of outstanding dues to the Electric Supply Corporation, which was being used by the defendant/opposite party to cater the supply of electricity at the suit premises. 24. By the said proposed amendment the petitioner was also permitted to introduce the factum of huge amount of outstanding dues to the Electric Supply Corporation, which was being used by the defendant/opposite party to cater the supply of electricity at the suit premises. 24. Once those facts were allowed to be incorporated, the petitioner filed the supplementary affidavit as to examination-in-chief, wherein it is stated that the petitioner is not interested in running any business from the suit premises as he has other businesses at a distant place within the Ranigung Municipality. 25. Since those facts were not pleaded the defendant/opposite party succeeded in expunging those statements from the affidavit as to examination-in-chief. 26. In paragraph 4 of the original plaint the petitioners have categorically pleaded that the defendant has caused damage to the suit property by keeping the same closed since considerable period of time and due to lack of maintenance the condition of the suit premises has deteriorated considerably. 27. The proposed amendment becomes necessary to elucidate and prove those statements. By the proposed amendment the petitioners wanted to convey the sense that why the defendant/opposite party is keeping the suit premises under lock and key. 28. If the facts have been brought to the notice at an advanced stage of the suit and have relevancy on one or more issues involved therein, the Court should not deny the party to amend the pleading, so that the entire controversy can be determined or decided and be brought at rest. 29. The eviction is not only sought on the ground of reasonable requirement, but on other grounds as well and, therefore, it is the fundamental duty of the Court to decide all the issues completely and effectively. This becomes more necessary because of the language employed under Section 13(1) of the West Bengal Premises Tenancy Act, 1956 that the Court can pass a decree for eviction against the tenant on any one or more grounds envisaged therein. 30. If the plaintiffs/petitioners are able to prove any one of the grounds, the Court shall pass a decree for eviction and, therefore, it becomes necessary that all the grounds taken in the plaint are required to be dealt with or determined by the Court. 31. 30. If the plaintiffs/petitioners are able to prove any one of the grounds, the Court shall pass a decree for eviction and, therefore, it becomes necessary that all the grounds taken in the plaint are required to be dealt with or determined by the Court. 31. The proviso inserted to Order 6, Rule 17 of the Code by way of an amendment having brought in the year 2002 does not apply to the present case in view of Section 16 of the Code of Civil Procedure (Amendment) Act, 2002. If the Court found that on an earlier occasion, even when the suit was posted at the stage of argument, the plaint is to be amended, the Court ought not to have simply proceeded to dismiss the subsequent application for amendment merely on the ground that the petitioners wanted to drag the litigation or intended to fill in the lacunae. The Court ought to have considered whether the proposed amendment is genuine and is necessary for the purpose of determination of the questions involved therein and the reasons for delay have been sufficiently explained. Order 6, Rule 2 of the Code of Civil Procedure clearly provides that the material facts are required to be pleaded and not the evidence. Each and every facts, which partake the characteristic of evidence so as to support the material fact already pleaded, are not required to be stated in the plaint. 32. Since the Court expunged those statements from the affidavit as to examination-in-chief and those appears to be material and important for the determination of one of the issues involved therein, this Court does not find any fetter in permitting the petitioners to bring those facts in the plaint by way of an amendment. The order impugned, therefore, is set aside. As a consequence whereof the application for amendment of the plaint is allowed. The petitioners are directed to file the amended plaint before the closure of the Trial Court for ensuing Puja vacation. Needless to mention that before filing the amended plaint a copy whereof shall be served on the learned advocate on record of the defendant/opposite party in the Trial Court. The defendant/opposite party is permitted to file additional written statement within one week after the reopening of the Trial Court following Puja vacation. Needless to mention that before filing the amended plaint a copy whereof shall be served on the learned advocate on record of the defendant/opposite party in the Trial Court. The defendant/opposite party is permitted to file additional written statement within one week after the reopening of the Trial Court following Puja vacation. The Trial Court is requested to make efforts to dispose of the suit as expeditiously as possible without granting unnecessary adjournments to either of the parties. This revisional application is thus disposed of. There will be no order as to costs.