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2017 DIGILAW 1081 (GAU)

Md. Masrur Hussain @ Asif v. Apurba Sarma

2017-08-09

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. P.K. Kalita, the learned Senior Counsel assisted by Mr. N. Das, the learned counsel appearing for the petitioner as well as Mr. Satyen Sarma, the learned counsel appearing for the respondents. 2. The challenge in this application under Article 227 of the Constitution of India is the order dated 29.03.2014 passed by the learned Civil Judge No.2, Kamrup (M), Guwahati in T.S. No. 290/2007, thereby rejecting an application for amendment of the plaint, filed under the provisions of Order VI Rule 17 of Civil Procedure Code (CPC). 3. The limited facts as required for this present case in hand is that the petitioner-plaintiff had filed T.S. No. 290/07, claiming damages, compensation and injunction for suffering defamation. The respondents- defendants contested the suit by filing written statement on 06.08.2008. The learned Senior Counsel as well as the assisting Counsel who were earlier conducting the suit earlier conducted had both expired and a new set of counsels were engaged by the petitioner for trial. Thereafter, the petitioners sought for adjournment of the suit for filing evidence of the Plaintiff’s witness on 16.11.2013, and the said prayer for adjournment was allowed. On the next date, i.e. on 03.12.2013, the petitioner’s side once again prayed for adjournment for filing evidence of plaintiff’s witness, which was also allowed. On the next date, i.e. on 20.12.2013, the petitioner’s side once again prayed for an adjournment, seeking time for filing evidence of the plaintiff’s witnesses and the petitioner had also filed petition No. 4939/13 under Order VI Rule 17 read with section 151 CPC for amending the plaint, inter-alia, praying for introducing a prayer for a decree of declaration that the news item dated 11.08.2017 published in the Assamese daily Ajir Asom is bad, false, defamatory and said publication has lowered the reputation of Plaintiff before the public and the defendants are liable for damages for such publication. The respondents had filed their written objection and upon hearing the learned counsels for the parties, the learned trial court rejected the said petition No. 4939/13 for amending the plaint. Aggrieved by the said order, this application has been filed. 4. The learned Senior Counsel for the petitioner has submitted that the petitioner had projected the correct state of events in his petition for amendment. Aggrieved by the said order, this application has been filed. 4. The learned Senior Counsel for the petitioner has submitted that the petitioner had projected the correct state of events in his petition for amendment. It is submitted that the petitioner had availed the advise of a Senior Counsel for his case, as such, as a client he has to depend on the advise of his counsel for legal presentation of his case. It was submitted that neither the petitioner is well acquainted with the art of drafting a suit, nor he is expected by anybody to be aware of the legal propositions of law and consequences of omission to make a prayer for declaration. By relying on the case of Usha Devi Vs. Rijwan Ahmad & Ors., (2008) 3 SCC 717 , it is submitted that in the said case, the learned trial court had rejected the proposed amendment on the ground that there was lack of due diligence and the party did not amend the plaint despite having ample opportunity to correct the mistake, yet the Hon’ble Apex Court allowed the proposed amendment of the plant. Hence, liberal approach was required while appreciating the prayer for amendment. 5. It is further submitted that the petitioner was also unaware of the effect of the various plea taken by the respondent in their written statement, therefore, the petitioner could not file his petition for amendment at a prior point of time. It is also submitted that there was no lack of due diligence on part of the petitioner, but being not aware of the intricacies of law, the petitioner was prevented from amending his plaint before the commencement of trial. It is also submitted that merely because there has been a delay, is no ground to refuse amendment, and in this connection, the learned Senior Counsel for the petitioner has relied on the case of Andhra Bank Vs. ABN Amro Bank N.V. & Ors., (2007) 6 SCC 167 . 6. It is further submitted that the view of the court should be liberal in allowing amendments and that the amendment, if allowed, would be in the interest of just and fair decision in the case. ABN Amro Bank N.V. & Ors., (2007) 6 SCC 167 . 6. It is further submitted that the view of the court should be liberal in allowing amendments and that the amendment, if allowed, would be in the interest of just and fair decision in the case. It is submitted that in the present case in hand, the amendment did not change the nature and character of the suit and such amendment has been necessitated in view of the stand taken by the respondents in their written statement. It is also submitted that as the proposed amendment went into the root of the matter and it was necessary for the purpose of making the claim more precise. In support of his contention, the learned Senior Counsel for the petitioner has relied on the case of Ramchandra Sakharam Mahajan Vs. Damodar Trimbak Tanksale, (2007) 6 SCC 737 . 7. It is submitted that as per the interpretation of the provisions of Order VI Rule 17 CPC, this Court in the case of Abdul Khalique Vs. Abdul Sattar & Ors., 2007 (1) GLT 644, by relying on the case of Baldev Singh Vs. Manohar Singh, 2007 (2) GLT 644 has held that the commencement of trial must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, etc. 8. Per contra, the learned counsel for the respondent has submitted that under the facts and circumstances of the case, as the suit was for tortuous claim of seeking monetary compensation and damages suffered on account defamation, and such a claim is covered by Article 75 of the Schedule appended to the Limitation Act, 1963, which prescribes a time limit of one year from the date of publication of the libel for filing a suit. It is submitted that as per the statements made in the plaint, the alleged defamatory news article was published in the concerned newspaper on 11.08.2007. Hence, the suit was required to be filed within 10.08.2008. Therefore, if a declaration is allowed to be prayed for in the suit on the basis of amendment petition, bearing petition No. 4939/13 filed on 20.12.2013, the same would hopelessly be barred by limitation and in this regard, the learned counsel for the respondent has relied on the case of (i) Vishwambher Vs. Therefore, if a declaration is allowed to be prayed for in the suit on the basis of amendment petition, bearing petition No. 4939/13 filed on 20.12.2013, the same would hopelessly be barred by limitation and in this regard, the learned counsel for the respondent has relied on the case of (i) Vishwambher Vs. Laxminarayan, (2001) 6 SCC 163 , and (ii) Van Vibhag Karmachari Griha Nirman Sahkari Sanstha Maryadit (Registered) Vs. Ramesh Chander & Ors. 9. It is submitted that in the present case in hand, there was total absence of exercise of any due diligence on part the petitioner because the very plea that the suit was not maintainable because the plaintiff did not pray for declaration to the effect that the news item dated 11.08.2007 published in ‘Ajir Asom’ is false and defamatory, without which the court cannot pass a decree for damages and compensation, was very much taken in the written statement filed on 06.08.2008. On this, the learned counsel for the respondent has relied on the case of Muhaeddin (Md.) Vs. Prakash Tiwari, 2017 (1) GLT 423. Moreover, in connection with the proviso to Order VI Rule 17 CPC, it is submitted that the commencement of trial begins when the issues are framed. 10. On the perusal of the plaint, it appears from the cause title of the plaint that the petitioner’s case was a “suit for damages, compensation and permanent injunction.” Accordingly, there was no prayer for seeking any declaration from the learned trial court. Therefore, by making a prayer for amending the plaint to seek a relief of declaration, the suit would become a declaratory suit and the other relief of damages and compensation would become a relief consequential to the relief of declaration. 11. The provisions of Article 75 of the Schedule appended to the Limitation Act, 1963 is under Part- VII – Suits relating to Tort. There is no separate period limitation prescribed for seeking a decree of declaration in a suit for damages, compensation and libel and, as such, in the present case in hand, the period of limitation shall be governed by the entry made in Article 75 of Schedule appended to the Limitation Act, 1963. There is no separate period limitation prescribed for seeking a decree of declaration in a suit for damages, compensation and libel and, as such, in the present case in hand, the period of limitation shall be governed by the entry made in Article 75 of Schedule appended to the Limitation Act, 1963. The provisions of the said Article 75 prescribes the following period of limitation:- Description of suit Period of Limitation Time from which period begins to run For compensation for libel One year When the libel is published. 12. Hence, going by the period of limitation prescribed in Article 75 of Schedule appended to the Limitation Act, 1963, the relief of declaration appears to be barred by limitation. As per the ratio of the case of Vishwambhar (supra), a relief which is barred by the relevant provisions of the Limitation Act, 1963 cannot be allowed to be introduced. Moreover, this Court is not persuaded to accept the argument advanced by the learned Senior Counsel for the petitioner that the claim for declaration would relate back to the time when the suit was filed. 13. Coming back to the order impugned herein, the learned trial court has found that there was lack of due diligence. This finding cannot be faulted with. The respondent- defendant had specifically stated in paragraph 2 of their written statement filed on 06.08.2008 that without seeking declaration, the plaintiff was not entitled to any relief of compensation and damages. It is unbelievable that a plaintiff would not attempt to read the written statement filed in his case for more than 5 years from 06.08.2008 to 20.12.2013. Therefore, the attempt to blame the previous counsels (both since deceased) is not sustainable, when there was no attempt on part of the petitioner to read the written statement for 5 years and speak with his counsel to understand the meaning of anything stated in the written statement. Hence, apart from the independent finding of this court that the proposed amendments seeking a decree for declaration was barred by limitation, this Court is of the view that the learned trial court had not committed any jurisdictional error in passing the impugned order. 14. Resultantly, this application stands dismissed without finding any infirmity with the order dated 29.03.2014 passed by the learned Civil Judge No.2, Kamrup (M), Guwahati in T.S. No. 290/2007. 15. 14. Resultantly, this application stands dismissed without finding any infirmity with the order dated 29.03.2014 passed by the learned Civil Judge No.2, Kamrup (M), Guwahati in T.S. No. 290/2007. 15. Both the parties are directed to appear before the court of learned Civil Judge No.2, Kamrup (M), Guwahati on 28.08.2017 without any further notice of appearance and by producing a certified copy of this order, shall seek further instructions from the said learned court.