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2017 DIGILAW 1104 (GAU)

Md. Harunor Roshid v. Jysotsna Phukan

2017-08-11

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mr. D. Baruah, the learned counsel for the petitioner as well as Mr. R.J. Bordoloi, the learned counsel appearing for the respondent. 2. By filing this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 22.06.2016 passed by the learned Munsiff No. 2, Kamrup (M), Guwahati, by which the prayer for amendment filed by the petitioner/plaintiff was rejected. 3. The learned counsel for the petitioner submits that in the copy of the plaint of T.S. No. 83/2011, the suit had been correctly described. Moreover, in the documents annexed to the plaint like the Deed of Rectification bearing registered Deed No. 7106 dated 24.08.1971 also contains the correct description of the suit land and moreover, the order passed by the learned Executive Magistrate on 16.11.2001 also contains the correct description of the suit land described in Schedule-C of the plaint. It is submitted that in the plaint, in Schedule-C, the boundary of the suit land was incorrectly described and in the body of the plaint in several places although the land is covered by Dag No. 34 (New), but due to typing error, the same has been mentioned as Dag No. 35. It is submitted that the witnesses of both sides have been examined and suit was at the argument stage, and at that state, the petitioner, by filing an application under Order VI Rule 17 read with Section 151 CPC, prayed for the following amendments: (a) In paragraph 2, 3, 5, 6, 15 and 21 of the plaint, wherever the words ‘Dag No. 35’ is appearing the same may be allowed to be substituted by the ‘Dag No. 34’. (b) In Schedule-A of the plaint, the boundaries mentioned therein may be allowed to be substituted by the following boundaries: “North- Keshab Chandra Barkataki South- G.D. Dombarin/20 ft Road East- Land of Brahmananda Choudhury West- P.W.D. Road” (c) In Schedule-B of the plaint, the boundaries mentioned therein may be allowed to be substituted by the following boundaries: “North- Dandi Saikia South- G.D. Dombrain/proposed 20 ft Road East- Brahmananda Choudhury West- Harunor Rashid (Plaintiff No. 1)” (d) In Schedule- C of the plaint, the boundaries mentioned therein may be allowed to be substituted by the following bouaries: “North- Kaushik Deka South- Harunor Rashid East- Dandi Saikia West- P.W.D. Road” 4. The said amendment application was registered as Misc. The said amendment application was registered as Misc. (J) Case No. 25/2016. The respondent herein who are the defendant No. 8 in the suit, filed their written objection, stating therein that the amendment was belatedly prayed about five years after the suit of the year 2011. It was also stated that by the change in the description of the land the nature and character of the suit would be changed. It was also stated that at a very belated stage, the petition for amendment of the plaint was for filing up lacuna because the plaintiffs’ witness was thoroughly cross-examine on the misdescription of the land. The learned trial court by order dated 22.06.2016, by relying on the case of Rajkumar Gurwara (Dead) through L.Rs. Vs. S.K. Sarwagi & Co. Pvt. Ltd. & Anr, AIR 2008 SC 203, dismissed the said application by holding that the petitioner could not satisfiy the court as regards to his due diligence and in committing delay in filing of the petition and it was also held that the defendant may be prejudiced as the defence is already closed and if the amendment is allowed, it would be lead to de-novo trial. 5. Challenging the aforesaid order, the learned counsel for the petitioner submits that there is no change in the nature and character of the suit because amendment of the said application was called for only for correction of the description of the land. It is also submitted that notwithstanding the delay in filing the application for amendment, the correct description of the suit land is required to be incorporated so that there would be no complication at the time of execution of the decree. It is submitted that that the error in the description of the suit land can be permitted to be corrected even at the execution or appellate stage. The learned counsel for the petitioner submits that in the written statement, the respondent had not taken any specific plea in respect of statements made in paragraph 12, 13 and 14 of the plaint on account of the wrong description of the suit land and, as such, the respondent would not be prejudiced from the defence already taken in the suit. In support of his argument, the learned counsel for the petitioner has relied on the case of Pratibha Singh & another Vs. In support of his argument, the learned counsel for the petitioner has relied on the case of Pratibha Singh & another Vs. Shanti Devi Prasad & another, (2003) 2 SCC 330 to project that in view of the provisions of Order VII Rule 3 CPC it was also one of the duty of the court to incorporate the correct description of the suit land. He was also relied on the case of Sajjan Kumar Vs. Ram Kishan, (2005) 13 SCC 89 , wherein the incorrect description of the suit property in the plaint was allowed to be amended by holding that the amendment was necessary for the purpose of brining to the fore the real question in controversy between the parties and the refusal to permit amendment was likely to create needless complications at the stage of execution in the event of the plaintiff succeeding in the suit. He has also relied on the case of Usha Devi Vs. Rijwan Ahamd & another, (2008) 3 SCC 177 to project that in the said case also not only objection as to the misdescription was taken in the written statement, but the plaintiff witness was thoroughly cross-examined and the application for amendment was also filed belatedly. However, by relying on the case of Sajjan Kumar (supra) he submits that the prayer for amendment was allowed. 6. By opposing the present application, the learned counsel for the respondent has submitted that suit was of the year 2011 and the petition for amendment was filed on 09.02.2016 after a lapse of five years. It is submitted that the plaintiff witness was cross-examined on the misdescription of the suit land on 12.11.2014 as well as on 30.01.2015 and thereafter, the case was fixed for argument and having availed the couple of adjournments at the argument stage, the present application was filed to dislodge the respondent from his defence. It is also submitted that in the entire text of the application for amendment, the petitioner has not made any attempt to show that despite due diligence the prayer for amendment could not be filed before commencement of trial. It is also submitted that in the entire text of the application for amendment, the petitioner has not made any attempt to show that despite due diligence the prayer for amendment could not be filed before commencement of trial. In this connection the learned counsel for the respondent has referred to the provisions of Order VI Rule 17 CPC and submits that it was the requirement of law that the petitioner should establish before the learned trial court about his due diligence, which is mandatory after the amendment of the provisions of Order VI Rule 17 CPC and having failed to do so, the present application under Order VI Rule 17 CPC is required to be dismissed and it was rightly dismissed by the learned trial court and, as such, the present application is also liable to be dismissed. 7. The learned counsel for the respondent submits that the cases cited by the learned counsel for the petitioner was not relevant because the Full Bench decision of the Hon’ble Apex Court in the case of Sajjan Kumar (supra) was a case arising out of rent control, where no dispute as regards the suit land could have possibly existed between landlord and the tenant and it is submitted that in the case of Usha Devi (supra) only the issue were framed and it was not a case where the trial was at the argument stage. In support of his contention, the learned counsel for the respondent has relied on the case of Revajeetu Builders and Developers Vs. Narayanaswami and Sons and Ors, (2009) 10 SCC 84 , Raj Kumar (supra), Kulbir Singh Vs. Prithpal Shdev and Ors., 2011 5 GLR 875 and Anil Chandra Nath Vs. Md. Alilul Islam and Ors., 2009 2 GLR 207. All these cases are cited to project that the party requiring amendment after hearing his commenced must show that despite due diligence the petitioner could not have raised the matter before commencement of trial and therefore, no matter how much the amendment was necessary, the same cannot be allowed without the satisfaction of the court as regards the existence of due diligence on part of the party applying for amendment. 8. 8. Having heard the arguments advanced by both the sides and on perusal of the material available on record at the outset, this Court would like to mention that it is in full agreement with all the cases cited by the learned counsel for both the parties and this Court has no intention to disagree with the law well settled on the point of amendment of the plaint. However, in the facts and circumstances of the present case where the petitioner is seeking only to correct the misdescription of the boundary of the suit land to correct the Dag number of the suit land, in the humble opinion of this Court the case of Prathibha Singh (supra) appears to be the judgment which squarely covers the facts of the present case. In the said case the Hon’ble Apex Court has held as follows: “15. Order 7 Rule 3 of the CPC requires where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it. Such description enables the Court to draw a proper decree as required by Order 20 Rule 3 of the CPC. In case such property can be identified by boundaries or numbers in a record for settlement of survey, the plaint shall specify such boundaries or numbers. Having perused the revenue survey map of the entire area of R.S. plot no. 595 and having seen the maps annexed with the registered sale deeds of the defendant judgment-debtors we are clearly of the opinion that the sub-plots 595/1 and 595/11 were not capable of being identified merely by boundaries nor by numbers as sub-plot numbers do not appear in records of settlement or survey. The plaintiffs ought to have filed map of the suit property annexed with the plaint. If the plaintiffs committed an error the defendants should have objected to promptly. The default or carelessness of the parties does not absolve the Trail Court of its obligation which should have, while scrutinizing the plaint, pointed out the omission on the part of the plaintiffs and should have insisted on a map of the immovable property forming subject-matter of the suit being filed. This is the first error. 17. The default or carelessness of the parties does not absolve the Trail Court of its obligation which should have, while scrutinizing the plaint, pointed out the omission on the part of the plaintiffs and should have insisted on a map of the immovable property forming subject-matter of the suit being filed. This is the first error. 17. When the suit as to immovable property has been decreed and the property is not definitely identified, the defect in the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 of the CPC is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to Section 152 or Section 47 of the CPC depending on the facts and circumstances of each case-which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under Section 152 of the CPC by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47 CPC. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission. In the facts and circumstances of the present case we think it would be more appropriate to invoke Section 47 of the CPC.” 9. The next case found to be relevant is the case of Sajjan Kumar (supra). The relevant paragraph 2 and 5 of the said Full Bench decision of the Hon’ble Supreme Court is quoted below: “2. The plaintiff-appellant is admittedly owner-cum-landlord of the suit property. He filed a suit for eviction against the respondent tenant. The proceedings in the suit were at a final stage when the plaintiff-appellant moved an application for amendment of the plaint. The proposed amendment sought the correction of the description of the suit premises in the plaint. The plaintiff-appellant is admittedly owner-cum-landlord of the suit property. He filed a suit for eviction against the respondent tenant. The proceedings in the suit were at a final stage when the plaintiff-appellant moved an application for amendment of the plaint. The proposed amendment sought the correction of the description of the suit premises in the plaint. It was alleged by the plaintiff-appellant that the description of the property given in the rent note itself was incorrect and the same description was repeated in the plaint and there would be complications at the stage of execution to avoid which the description of the suit premises as given in the plaint needed to be corrected. 5. Having heard the learned counsel for the parties, we are satisfied that th appeal deserved to be allowed as the trial court, while rejecting the prayer for amendment has failed to exercise the jurisdiction vested in it bylaw and by the failure to so exercise it, has occasioned a possible failure of justice. Such an error committed by the trial court was liable to be corrected by the High Court in exercise of its supervisory jurisdiction, even if Section 115 CPC would not have been strictly applicable. It is true that the plaintiff-appellant ought to have been deligent in promptly seeking the amendment in the plaint an early stage of the suit, more so when the error on the part of the plaintiff was pointed out by the defendant in the written statement itself. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bring to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff appellant succeeding in the suit.” 10. Still, we are of the opinion that the proposed amendment was necessary for the purpose of bring to the fore the real question in controversy between the parties and the refusal to permit the amendment would create needless complications at the stage of execution in the event of the plaintiff appellant succeeding in the suit.” 10. In light of the facts of the present case where the amendment sought for does not change any pleading of the plaint but it seeks to correct only the boundary as well as the Dag number of the suit land, therefore merely, because there is a delay in approaching the court for amending the plaint, it would not disentitle the plaintiff to correct the description of the suit land in the plaint as it has been held by the Hon’ble Supreme Court in the case of Pratibha Singh (supra) that misdescription of the suit land even be correct at the execution stage under Section 47 CPC and also by invoking Section 152 CPC. Hence, by following the ratio of the said cases of Sajjan Kumar (supra) and Pratibha Singh (supra), this Court is inclined to allow the prayer for amendment by holding that the learned court below had committed jurisdictional error in not permitting the amendment lf the description of the suit land which appears to be contrary to above cited cases of Sajjan Kumar (supra) and Pratibha Singh (supra). 11. Consequently, the application for amendment, being Misc. (J) Case No. 25/2016 arising out of T.S. No. 83/2011 deserves to be allowed. 12. The learned trial court shall pass consequential orders to permit the defendant herein to file their additional written affidavit. Considering the delay which may be caused in the disposal of the suit, this Court is inclined to award a cost of Rs.5,000/- under Section 35B against the petitioner and in favour of the respondent by making such cost as a condition precedent to be deposited by the petitioner in favour of the respondent before the learned trial court, failing which the petitioner shall not be permitted to carry out the amendment. 13. The parties are directed to appear before the learned Court of Munsiff No. 2, Kamrup (M), Guwahati on 01.09.2017 without any further notice for appearance and by producing the certified copy of this order, seek further instructions from the said learned court.