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2017 DIGILAW 1075 (GAU)

Rezia Begum v. Nazim Bano Ahmed

2017-08-08

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. P.J. Saikia, the learned counsel for the petitioners-plaintiffs and Mr. M. Nath, the learned counsel appearing for the respondents-defendants. 2. The petitioners are the plaintiffs in T.S. No. 116/09, which is pending for disposal in the court of the learned Munsiff No.1, Dibrugarh. In the said suit the petitioners had prayed for a decree of declaration that the defendants are entitled to 1/4th share of land of Late Fariduddin Ahmed, measuring about 62579/2880lessas (almost 7 lessas) out of the entire suit land and each of the plaintiffs is entitled to an equal share in the remaining 3K-41043/960lessas (almost 3 katha 5 lessas) of land out of the entire suit land as legal heirs and successors of Late Nizamuddin Ahmed and Late Fariduddin Ahmed, for perpetual injunction and other reliefs. The respondents-defendants contested the suit by filing written statement cum counter-claim on 12.01.2010. The prayer in the counter-claim was for decree for declaration of right, title, interest and possession of the suit land and premises in favour of the defendants and for declaration that the defendants are entitled to get their names mutated in the records of right in respect of the entire suit land, and other reliefs. Thereafter, the plaintiff prayed for amendment of the plaint, which was allowed and the amended plaint was filed on 10.05.2011. The suit was heard and dismissed and the counter-claim was allowed by the learned trial court by judgment and decree dated 07.12.2012. 3. Being aggrieved by the decree of the counter- claim, the petitioner filed an appeal, being TA No. 16/2013. The learned Civil Judge, Dibrugarh, by its first appellate judgment dated 25.08.2014, allowed the appeal and the matter was remanded back to the trial court with a direction to frame additional issues as reflected in para 25, 26 and 27 of the judgment and to decide the matter afresh. The additional issues were – (a). Whether Fariduddin was the owner of 0B-1K-10Ls of land as claimed by the plaintiff or 0B-3K-17.5 Ls of land as claimed by the defendant? (b). Whether Late Nizamuddin had made oral gift in respect of 0B-0K-19.10 Ls of land in favour of Fariduddin as claimed by defendants? (c). Whether Fariduddin has made gift of his entire land in favour of defendant as claimed by the defendant? (d). (b). Whether Late Nizamuddin had made oral gift in respect of 0B-0K-19.10 Ls of land in favour of Fariduddin as claimed by defendants? (c). Whether Fariduddin has made gift of his entire land in favour of defendant as claimed by the defendant? (d). Whether Late Nizamuddin during his lifetime made an oral gift in respect of 0B-1K-10Ls of land in favour of his son namely Fariduddin as claimed by the plaintiffs?” (e). Whether the mutation order in Mutation Case No. 1013/08 of circle Officer, East Revenue Circle, Dibrugarh in the name of defendant in place of late Fariduddin Ahmed was illegal and in—operative in law? 4. In course of re-trial, the petitioner filed petition No. 856/15 dated 03.12.2015 under the provisions of Order VI Rule 17 CPC for allowing them to amend the plaint. In the petition it was stated that their earlier engaged lawyer erroneously omitted to claim the reliefs of preliminary and final decree as per the provisions of Order XX Rule 18 CPC; and proportionate share of rents and profits on rendition of accounts; and the correct description of schedule of the suit land. The nature of the proposed amendment was provided in paragraph 8 of the said petition; which are – 8. That as such it is necessary and it would be just, proper and reasonable to allow the following amendments in the plaint:- (a) to correct the date in line No. 4 of para no. 2 at page no. 2 from 11.06.1976 to 06.11.1976. (b) to insert para 16 (a) as under:- 16 (a) That the plaintiffs are also entitled to (i) Perliminary and final decree grating partition by metes and bounds and separate possession in favour of the plaintiffs in respect of the land measuring 0B-3K-4 1043/960 Ls (almost 3K-5Ls) from and out of the suit land measuring 0B-3K-11 707/720 Ls (almost 3K-12Ls) as per provisions of Order 20 Rule 18 of the CPC.; (ii) Proportionate share of rents and profits on rendition of accounts; (iii) Cancellation of the mutation order in favour of the defendant in Mutation Case No. 1013/08-09. (c) to insert para 18 (a) as under:- 18 (a) That for the reliefs of partition etc. as aforesaid, the suit is valued at Rs.1,00,000/- (Rupees One Lakh) only and the plaintiffs having paid thereon the requisite Court fee of Rs. 2731.60p, in C.F. stamps also pray for the same. (c) to insert para 18 (a) as under:- 18 (a) That for the reliefs of partition etc. as aforesaid, the suit is valued at Rs.1,00,000/- (Rupees One Lakh) only and the plaintiffs having paid thereon the requisite Court fee of Rs. 2731.60p, in C.F. stamps also pray for the same. (d) to correct the schedule as under:- to insert the words “with 3 (three) houses, included in Holding Nos. 313 and 318 of Ward No. 21 Dibrugarh Municipal Board” and “and being bounded as under” 5. The respondents filed their written objection and the learned trial court, by an order dated 29.03.2016 allowed amendment as proposed in paragraph 8(a), 8(b)(iii) and 8(d), but the learned court did not consider the amendment proposed in paragraphs 8(b)(ii) and 8(c), and the amendments as proposed in paragraph 8(b)(i) of the said amendment petition was rejected. Aggrieved by the rejection of a part of the prayer for amendment, this application has been filed. 6. The learned counsel for the petitioner has submitted that there was no change in the cause of action for the suit. Moreover, the prayer now made was in aid of the principal relief already sought for and the prayer for preliminary decree and final decree was a natural consequence of the main relief of share in the suit land. It was submitted that all the petitioners were Muslim ladies and the petitioner No.1, who has been taking steps in the case was now 64 years old and had been dependent on her counsel for drafting the plaint and, as such, the inadvertence of the prayer for partition and not mentioning the correct description of the suit land in the schedule of the plaint was liable to be viewed leniently. It is also submitted that if there was no lack of due diligence, then even one part of the amendment ought not to have been allowed by the learned trial court because then the court would be deemed to apply two different standard for two sets of amendments by allowing some and rejecting some, although they were made in one petition. It is further submitted that as the suit was remanded, the effect would be that the suit is relegated at the stage of trial and, as such, it would be open for the parties to amend their pleadings in support of the additional issue that has been framed by the learned appellate court. In support of his argument, the learned counsel for the petitioners has relied on the following case citations:- (a). Sanatan Mohapatra & Ors. Vs. Hakim Mohammad Kazim Mohmmad & Ors., AIR 1977 Orissa 194. 7. Per contra, the learned counsel for the respondent has argued in support of the impugned order and submitted that the suit was heard and finally disposed of and the matter was remanded for fresh trial on additional issues and, as such, by the proposed amendment, the petitioners were changing the nature and character of the suit and if the proposed amendments are allowed, then the suit will become a partition suit from a suit for mere declaration and possession. It is submitted that there was a total absence of due diligence and therefore, there was no absence of any infirmity in the present case.By referring to the statements made in the written objection, it is further submitted that the present set of counsels had been engaged in the year 2013 and they had not only prepared the Memo of Appeal of TA No. 16/2013 and had argued the appeal and were retained to represent the petitioners in the suit after remand and, as such, the blame on the previous counsel was a misapplied effort to gain sympathy of this court. In support of his argument, the learned counsel for the respondent has relied on the following case citations:- (a). Muhaeddin (Md.) Vs. Prakash Tewari, 2017 (1) GLT 432. (b). Abdul Basid Vs. Nazrul Haque & Ors., 2015 (5) GLT 159. 8. Considered the argument advanced and the cases cited by the learned counsel for both the parties. In this case, after the matter was remanded, the trial had commenced for the second time with the framing of additional issues. Thereafter, as per the statements made in the written objection by the respondent, it appears that the petitioners- plaintiffs had even submitted their evidence-on-affidavit of two witnesses and that their respective cross-examination had not yet started. 9. In this case, after the matter was remanded, the trial had commenced for the second time with the framing of additional issues. Thereafter, as per the statements made in the written objection by the respondent, it appears that the petitioners- plaintiffs had even submitted their evidence-on-affidavit of two witnesses and that their respective cross-examination had not yet started. 9. It appears that the learned counsel for the respondent is correct that there is no statement in the amendment petition to show that the amendments could not be raised prior despite due diligence. It is seen that after the CPC was amended in the year 2002, there is now a requirement under the proviso appended to the provisions of Order VI Rule 17 CPC that the court is not to allow any amendment after the trial has commenced, unless the court comes to a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. This is considered to be the litmus test for allowing amendments after the trial has commenced. 10. Now coming to the amendment petition it is seen that the learned trial court had allowed amendment as proposed in paragraph 8(a), 8(b)(iii) and 8(d), but the learned court did not consider the amendment proposed in paragraphs 8(b)(ii) and 8(c), and the amendments as proposed in paragraph 8(b)(i) was rejected. 11. Thus, it is seen that while the learned trial court allowed a part of prayer for amendment, it did not consider at all that in respect of those paragraphs also there was neither any explanation of exercise of due diligence on part of the petitioners, nor the learned trial court had recorded its satisfaction that this was a case where despite due diligence, the petitioners could not have amended the plaint before the commencement of trial. The submission made by the learned counsel for the petitioner that if one set of prayer for amendment was allowed, the other amendments should also be allowed, cannot be accepted for one simple reason that if one mistake has been made, it is not necessary that this court to allow recurrence of the mistake and would put its seal of approval to the other amendment despite there being no attempt to show that the plaint could not be amended prior to the commencement of trial in spite of due diligence on part the petitioner. 12. The amendment in respect of para 8(c) related to court fees, which was not considered at all and similarly, the amendment in respect of proportionate share of rent and profits on rendition of accounts was not considered, as such, it would be deemed that the learned trial court had rejected the said prayer. As per the order, only the prayer for preliminary decree and final decree as proposed by paragraph 8(b)(i) was rejected. It is seen that there was already a prayer for declaration of share of the plaintiffs and the defendants, being prayer (I) as mentioned herein before. Thus, in the opinion of the court, the prayer for drawing up a preliminary and a final decree appears to be an attempt of the petitioners to make their claim more precise, because it is the mandate of the provisions of Order XX Rule 18 CPC about how a civil court should draw up a decree in a partition suit. Civil Courts are bound to adopt the procedure prescribed in the Code for passing judgment in a suit where shares for all the parties to the suit is to be determined and, the same is not dependent on the prayer made in the plaint. Therefore, there appears to be no infirmity when a prayer for amendment is made to seek a preliminary decree and a final decree, which is in consonance with the already existing prayer (I) quoted above. The amendment as proposed by paragraph 8(c) of the amendment petition relates to court fee. In the opinion of this court, it is a well settled law that if there is any deficit in the payment of the appropriate court fees, it is always open for the court to direct the plaintiff to meet the deficiency at any stage of the suit. In the opinion of this court, it is a well settled law that if there is any deficit in the payment of the appropriate court fees, it is always open for the court to direct the plaintiff to meet the deficiency at any stage of the suit. It is for this reason that this court is inclined to allow the other amendments, as proposed vide paragraphs paragraph 8(b)(i) and 8(c). 13. In this regard, for allowing the amendment as per paragraph 8(b) of the amendment petition, this court is guided by the case of Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale, (2007) 6 SCC 737 . Paragraph 14 of the said judgment which reads as follows:- “14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at abelated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.” 14. However, the prayer for amendment as proposed by paragraph 8(b)(ii) stands rejected as the petitioners have not been able to demonstrate why the said issue could not be raised at the commencement of trial. 15. Hence, this court finds that the learned Court of Munsiff No.2, Dibrugarh, committed jurisdictional error in refusing amendment so far it related to paragraph 8(b)(i) and 8(c) of petition No. 856/15 dated 03.12.2015. 15. Hence, this court finds that the learned Court of Munsiff No.2, Dibrugarh, committed jurisdictional error in refusing amendment so far it related to paragraph 8(b)(i) and 8(c) of petition No. 856/15 dated 03.12.2015. The said order is upheld so far it relates to non- consideration of amendment as proposed in respect of paragraph 8(b)(ii) of petition No. 856/15 dated 03.12.2015. 16. Resultantly, this revision stands partly allowed to the extent that prayer for amendment as proposed by paragraph 8(b)(i) and 8(c) of petition No. 856/15 dated 03.12.2015 stands allowed. The learned trial court shall pass consequential orders to allow the respondent- defendant to file additional written statement and/or amended written statement, as may be desired, in respect of the proposed amendments to be carried out by the petitioner- plaintiff. 17. But, this court cannot ignore the fact that the petitioner had not been diligent in prosecuting the suit in the proper manner, and it was totally wrong to put the blame on their counsel. Therefore, this Court is inclined to direct the petitioner to deposit a compensatory cost of Rs.10,000/- before the learned trial court as a pre-condition for allowing the amendment. If such cost is not deposited, then the proposed amendment shall not be permitted to be carried out. 18. As this court had not called for the record, it is not possible for this court to arrive at definite finding as to whether the counsel who had now been pressing for amendment in the trial court was the one who had drafted the Memo of Appeal in TA 16/2013 and was pursuing the suit after remand, has chosen to blame the drafting by the previous counsel. If this has actually happened, such practice is required to be strongly deprecated, which this court does, and stops at this. 19. The parties are directed to appear before the learned Court of Muniff No.2, Dibrugarh on 28.08.2017 without any further notice for appearance and by producing the certified copy of this order, seek further instructions from the said learned court.