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2017 DIGILAW 1352 (GAU)

L. M. Commercial House v. Chittaranjan Patowary

2017-10-24

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. J. Sharma, the learned counsel for the petitioner as well as Mr. A.C. Sarma, the learned senior counsel assisted by Mr. G. Bharadwaj, 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 03.03.2017 passed by the learned Civil Judge No.3, Kamrup (M), Guwahati in Title Suit No.1/2009, thereby rejecting the application for amendment of written statement for the purpose of introducing a counter claim. 3. The summary of facts of the case is as follows: The respondent is the plaintiff in TS No.1/09. The said suit is presently pending before the court learned Civil Judge No.3, Kamrup (M), Guwahati. The suit was for declaration, eviction of petitioner/defendant and for recovery of arrear rent. The petitioner defendant contested the suit by filing written statement. As a counter blast, the petitioner has also filed Money Suit No.47/2009 against the respondent for realizing a sum of Rs.20,000/- with interest thereon. The respondent contested the suit by filing written statement. Both suits i.e. TS No.1/2009 and Money Suit No.47/2009 were tried analogously by the learned Civil Judge, No.3, Kamrup (M), Guwahati. The learned trial court allowed TS No.1/09 by judgment and decree dated 15.06.2015 and found that the petitioner was entitled to recover a lumpsum amount of Rs.50,00,000/- from the respondent for the cost of renovation done by the petitioner. However, the money suit No.47/2009 filed by the petitioner was dismissed. 4. Aggrieved by the Decree passed in TS No.1/09, the petitioner filed RFA No. 39/2015 before this Court and also filed RFA No.49/2015 against the dismissal of Money Suit No.47/2009. The respondent has also filed a cross objection to challenge the finding of the learned trial court that the plaintiff was liable to make payment of Rs.50 Lakh towards expenditure incurred by them in making renovation of the suit premises. Both the appeals were heard and disposed of by the appellate judgment dated 17.03.2016, by which this Court allowed RFA No. 39/2015 and RFA No.49/2015 was dismissed. The proceeding of TS No.1/09 was remanded back to the learned trial court for fresh disposal with a direction to give opportunity to both the parties to lead evidence in respect of their respective cases. The proceeding of TS No.1/09 was remanded back to the learned trial court for fresh disposal with a direction to give opportunity to both the parties to lead evidence in respect of their respective cases. In respect of RFA No. 49/2015, it was observed that the amount of Rs.20,00,000/- was not proved to be a loan but the said amount would probably be recovered from the respondent along with interest thereon incurred for renovation. On remand of the TS No.1/09 back to the learned trial court, the petitioner-defendant filed an application under Order VI Rule 17 read with 151 CPC for amending the written statement, seeking liberty to insert paragraph-21, 22 and 24 along with the prayer for countering for a decree for a realization of Rs.1 Crore against the respondent-plaintiff towards cost of investment in the construction/modification of the building along with interest @ 12% per annum. The said petition was numbered as Petition No. 2521/16. The respondent filed his written objection. The learned trial court after hearing the learned counsel for both sides rejected the Petition No. 2521/16 vide order dated 03.03.2017. Against the said order, the petitioner filed an application for review under Order XLVII Rule 1 read with Section 151 CPC, which was numbered as Misc.(J) Case No. 285/2017. The respondent filed his written objection. The learned trial court by an order dated 22.06.2017 rejected the application for review. Aggrieved by the order passed in the review application, this revision has been preferred. 5. As the order dated 03.03.2017, by which the amendment was refused, is not under challenge, the learned senior counsel for the respondent has challenged the maintainability of this revision, which was recorded in the order dated 02.08.2017. Subsequently, the petitioner filed IA(C) No. 2888/2017 for amending the revision application, which was allowed by the order dated 30.08.2017. Accordingly, the amended revision application was filed to challenge the order dated 03.03.2017 as well as order dated 22.06.2017 passed in Misc.(J) Case No. 285/2017. The respondent has contested this application by filing affidavit in opposition. 6. The learned counsel for the petitioner submits that three tenancy agreements were exhibited in the suit. The agreement dated 02.12.2007 exhibited by the respondent was marked as Exhbt.-1. The said Exhbt.-1 has been held to be inadmissible by this Court in RFA No. 39/2015. The respondent has contested this application by filing affidavit in opposition. 6. The learned counsel for the petitioner submits that three tenancy agreements were exhibited in the suit. The agreement dated 02.12.2007 exhibited by the respondent was marked as Exhbt.-1. The said Exhbt.-1 has been held to be inadmissible by this Court in RFA No. 39/2015. The same document has been exhibited by the petitioner as Exhibit.-D. Another deed of agreement dated 01.11.2007 was exhibited by the petitioner as Exhibit.-E. It is submitted that the said agreement dated 01.12.2007 contains a narration that the demised premise would be extended and developed by the petitioner by constructing additional three floors i.e. 2nd, 3rd and 4th Floor at their cost which would run upto about Rs.1 Crore and the same was to be adjusted against the monthly rent till such time the entire investment cost as aforesaid is liquidated. It is submitted that as per clause-(iv) of the tenancy agreement dated 01.12.2007, it was provided that the monthly rent would be increased @ 15% after expiry of every 3 years or during the subsistency of the tenancy period which shall continue till such time the entire investment cost of the development of the building i.e. 2nd, 3rd and 4th Floor and ancillary construction, if any, thereof by the tenant is set off. In clause-(vii) it is provided that 70% of the rent will be adjusted towards the expenses incurred by the tenant for construction of additional floors which is approximately Rs. 1 Crore only. In clause-(viii) thereof it is provided that should any eventuality takes place for which the landlord requires the vacant possession of the demised premises or due to unfortunate or unforeseen reasons, the tenant has to wind up his hotel business, both parties shall require 3 month’s notice to be served no either parties for handing over vacant possession either way in which case, the landlord shall refund the amount to the tenant, notwithstanding any dispute between the parties to be resolved ……………. By referring to the aforesaid clauses, he submits that in the event the petitioner is actually evicted from the suit premises, cause of action would accrue to the petitioner to claim a refund of Rs.1 Crore, invested by the petitioner for construction of 2nd, 3rd and 4th Floor of the building. By referring to the aforesaid clauses, he submits that in the event the petitioner is actually evicted from the suit premises, cause of action would accrue to the petitioner to claim a refund of Rs.1 Crore, invested by the petitioner for construction of 2nd, 3rd and 4th Floor of the building. It is further submitted by the learned counsel for the petitioner that notwithstanding the reference to the cost of construction by the learned trial court as well as by this Court in the judgment dated 17.02.2016 passed in RFA No. 39/2015 and RFA No. 49/2015, the actual pay for Rs.1 Crore was sought to be raised by filing the application of amendment of the plaint after remand for retrial. It is also submitted that if the petitioner is permitted to amend the written statement for making a counter claim, it would lead to avoiding of multiplicity of litigation because the petitioner had a continue right to seek recovery of investment in the event he is unable to carry on the business in terms of provisions made in the tenancy agreement dated 01.12.2007 (Exhibit.-E). 7. It is also submitted by the learned counsel for the petitioner that the counter claim sought to be introduced was not a time barred claim. However, the trial court had the power to relay back the amendment back to the date of filing of the written statement. In support of the doctrine of relation back as argued, the learned counsel for the petitioner has relied on the case of Prithi Pal Singh and another Vs. Amrik Singh and others, (2013) 9 SCC 576 . In order to impress upon this Court, the manner in which a …………… can be introduced in a suit, the learned counsel for the petitioner has referred to the case of Ramesh Chand Ardawatiya Vs. Anil Anjwani, (………) 7 SCC 350. To support his argument, on the point that the amendment was required to be made to enable the trial court to arrive at a just and proper decision for determination of real question in controversy between the parties, the learned counsel for the petitioner has relied on the case of State of Madhya Pradesh Vs. Union of India and another, (2011) 12 SCC 268 as well as Abdul Rehman and another Vs. Mohd. Ruldu and others, (2012) 11 SCC 341 . 8. Union of India and another, (2011) 12 SCC 268 as well as Abdul Rehman and another Vs. Mohd. Ruldu and others, (2012) 11 SCC 341 . 8. The learned counsel for the petitioner has submitted that as the factual foundation for the counter claim had been stated in the written statement, this was a fit case where the amendment was required to be allowed and that the learned trial court by refusing the amendment had committed jurisdictional error. 9. Per contra, the learned senior counsel for the respondent has opposed this application. He has submitted that in this case in had not only the trail of the suit is over but by virtue of the judgment delivered by this First Appellate Court the suit came to be remanded back for fresh trial and, as such, there is no existence of due diligence on the part of the petitioner to justify amendment of the plaint at such a belated stage, because the suit was instituted in the year 2009. The learned senior counsel for the respondent has specifically referred to the statement made in paragraph-3 of the amendment application to show that the petitioner had projected therein that the counter claim was not filed due to inadvertence and therefore, the petitioner has not been able to demonstrate as to why due diligence was not shown in the suit before the trial had began. He further submits that there is no explanation as to why counter claim could not be filed along with the written statement. 10. The learned senior counsel for the respondent has submitted that the right of the respondent in respect of the suit premises suits to crystallized by filing of T.S. No. 1/2009 and, as such, the corresponding right of the petitioner to claim compensation from the respondent also took effect from the time of filing of the suit, which had to be exercised within the period of limitation prescribed for claiming compensation under the Schedule appended to the Limitation Act, which was one year as per Article 72 and three years under Article 18 of the Schedule appended to the Limitation Act, 1963. 11. In this regard it is submitted that the suit was filed in the year 2009 and the petitioner filed his written statement on 11.05.2009 and therefore, the petition for amendment filed on 28.07.2016 was obviously barred by limitation. 11. In this regard it is submitted that the suit was filed in the year 2009 and the petitioner filed his written statement on 11.05.2009 and therefore, the petition for amendment filed on 28.07.2016 was obviously barred by limitation. By citing the case of South Konkan Distilleries and another Vs. Prabhakar Gajanan Naik and others, AIR 209 SC 1177, it is submitted that the amendment, if allowed would make out a new case and the delay in seeking the amendment was not explained, for which the rejection of the prayer for amendment was proper. 12. Having heard the learned counsels for both sides, this Court has perused the materials available on record. At the outset, this Court deems it fit to state that the petitioner has not filed either a copy of the plaint or copy of the written statement or the tenancy agreement dated 01.12.2007. Therefore, going by the present application, as presented, the petitioner has not disclosed the material facts in this application. However, the respondent has annexed the same in their affidavit in opposition. From the perusal of the written statement, it is seen that it is silent as regards investment of Rs.1 Crore for construction of 2nd, 3rd and 4th Floor of the building. Therefore, this Court is unable to accept that the written statement contain the factual foundation for the counter claim in the written statement. In pargarph-9 of the written statement although various clauses of the tenancy agreement dated 01.12.2007 is quoted, the clause No.(vii) quantifying the approximate cost of construction at Rs.1 Crore has been specifically omitted to quote. The judgment of the trial court has not been annexed by the petitioner and, as such, there is no material before this Court to see what was the evidence led by the parties basis on which the learned court had awarded the decree for Rs.50 Lakh in lumpsum to the petitioner-defendant towards purported expenditure incurred by them in renovation of the suit premises. However, such a decree finds mention in the first appellate judgment passed by this Court on 17.03.2016 in RFA No. 39/2015 and RFA No. 49/2015. However, such a decree finds mention in the first appellate judgment passed by this Court on 17.03.2016 in RFA No. 39/2015 and RFA No. 49/2015. In paragraph-11 of the said judgment dated 17.03.2017 in respect of additional issue No.3, it is recorded that the learned trial court was of the opinion that the defendant has done some renovation in the suit premises but they could not prove the actual expenditure though they claimed the same to be Rs.1 Crore. Nevertheless, in view of the recording about the claim of Rs.1 Crore by the petitioner in the first appellate judgment of this Court, the reference to the claim of Rs.1 Crore in course of the trial notwithstanding the fact that in the written statement there is no factual foundation of pleadings in support of expenditure of Rs.1 Crore. 13. this Court is of the opinion that in view of categorical recording by this Court in paragraph-11 of the judgment dated 17.03.2017 passed in RFA No.39/2015 and RFA No.49/2015 about the claim of Rs.1 Crore by the petitioner, this is a case where the petitioner-plaintiff had participated in the trial with knowledge of their existing claim of Rs.1 Crore against the respondent herein. Under the circumstances, this is case where there is total lacking of exercise of due diligence by the petitioner for not raising the issue at the time of commencement of trial in T.S. No.1/2009. In the opinion of this Court, after the hearing has commenced in a suit, the proviso to the provision Order VI Rule 17 CPC requires the party applying for amendment to show that inspite of due diligence the petitioner could not raise the matter before commencement of trial. This point is very crucial because as per paragraph-11 of the above referred judgment, the petitioner is found to have raised the issue of their investment to the extent of Rs.1 Crore. 14. This point is very crucial because as per paragraph-11 of the above referred judgment, the petitioner is found to have raised the issue of their investment to the extent of Rs.1 Crore. 14. Coming to the application for amendment, it is seen that in paragraph-3 thereof, it is specific statement made by the petitioner to the effect that -“…although the petitioner has filed the written statement in the above case by stating the details of the development and renovation of the Hotel after taking the suit premises on rent from the plaintiff by incurring an investment of Rs.1.00 Crore (Rupee One Crore) but inadvertently the defendant could not file the counter claim separately and in view of the said circumstances the petitioner needs to amend their written statement by inserting the following paragraphs….”. 15. Moreover, as the amendment relates to insertion in counter claim, the paragraph No.24 was also proposed to be inserted which contains various dates on which cause of action for the counter claim arose being 01.12.2007, 15.09.2008, 09.02.2009, 23.12.2008, 17.03.2016. Prima facie, the dates of cause of action arising on 01.12.2007, 15.09.2008, 09.02.2009 and 23.12.2008, appear to be barred by limitation. However, this is merely an observation and not a final finding on whether any cause of action is barred by limitation. 16. As by way of amendment, counter claim is sought to be introduced, this Court is of the opinion that if the proposed amendment is allowed it will change the nature and character of the defense and it will introduce a new cause of action in respect of the counter claim. Therefore, this Court is of the unhesitant view that if the petitioner has several cause of action, the petitioner may institute a fresh suit but having raised the issue of the claim of Rs.1 Crore at the stage of trial, based on which the learned trial court had even found the petitioner to be entitled to a lumpsum cost of Rs. 50 Lakh, which was reversed by this Court in the above referred first appellate judgment, this is not a fit case where an amendment to the written statement for introducing the counter claim can be permitted to be allowed by this Court in exercise of superintending jurisdiction under Article 227 of the Constitution of India. 50 Lakh, which was reversed by this Court in the above referred first appellate judgment, this is not a fit case where an amendment to the written statement for introducing the counter claim can be permitted to be allowed by this Court in exercise of superintending jurisdiction under Article 227 of the Constitution of India. As the amendment seeks to make out a new case, this Court finds itself bound by the ratio of the case of South Konkan Distilleries (supra) where the rejection of an amendment was found to be proper because the delay in seeking the amendment was not explained. On facts, the case of Prithi Pal Singh (supra) is not found applicable in the present case because it was a case seeking amendment of plaint and not for introduction of a counter claim. In the said case, the suit seeking relief of ……….. was held to be instituted within time and, as such, the introduction of a new ground to support new relief by way of amendment was held not to be time barred. However, in the present case is hand, there is no material disclosure and even in the amendment application or in this revision as to why the cause of action for counter claim which arose of 01.12.2007, 15.09.2008, 09.02.2009, 23.12.2008 were not barred by limitation. 17. Appreciating the cited case of State of Madhya Pradesh (supra), it is seen that the said case is a original suit filed before the Hon’ble Supreme Court under Article 131 of the Constitution of India. A decision on amendment of pleadings in the original suit before the Hon’ble Supreme Court cannot be applied in the original suit before the civil courts. Moreover, in the said case, it has been held that where an application for amendment was filed after commencement of trial, it must be shown that inspite of due diligence such amendment could not been sought earlier and in the said case amendment was eventually refused. Therefore, the said case does not appear to help the case of the petitioner. Moreover, in the said case, it has been held that where an application for amendment was filed after commencement of trial, it must be shown that inspite of due diligence such amendment could not been sought earlier and in the said case amendment was eventually refused. Therefore, the said case does not appear to help the case of the petitioner. Even in the case of Abdur Rehman and another (supra), it has been held that amendment should be liberally allowed if it does not change the nature of the suit and in the said case, the plaint was sought to be amended, which is not the case in present hand as by introducing a counter-claim, it would change the basic nature of the suit. Coming to the case of Ramesh Chand Ardawatiya (supra) although the law relating to filing of counter claim has been well settled by the said case, the below noted passage from paragraph -28 thereof is found to have …. Relevance for the purpose of this case. The two passages from paragraph -28 is quoted below: “….Generally speaking, a counter-claim not contained in the original written statement may be refused to be taken on record if the issues have already been commenced. But a counter-claim is certainly not entertainable when there is no written statement on record…...” “……..A refusal on the part of the court to entertain a belated counter-claim may not prejudice the defendant because in spite of the counter-claim having been refused to be entertained he is always at liberty to file his own suit based on the cause of action for counter-claim…….” 18. In view of above, this Court finds that the learned trial court had committed no jurisdictional error in rejecting the prayer for amendment by the impugned order dated 03.03.2017. 19. Insofar as the application for review is concerned, going by the language contained in Section 114 as well Order XLVII Rule 1 CPC, this Court is of the view that that an application for review is maintainable only under circumstances given in Section 114(a)(b)(c) which is similarly worded to the provisions contained in Sub-Rule (1)(a)(b)(c) of Rule -1 of Order XLVII CPC. The order of rejecting amendment is not an appealable decree and order and, as such, the application for review is not maintainable. The order of rejecting amendment is not an appealable decree and order and, as such, the application for review is not maintainable. And, as such, the order dated 22.06.2017 passed by the learned trial court in Misc.(J) Case No.285/2017 being without jurisdiction is liable to be ignored. 20. Accordingly, the rejection of review application is ignored and shall not prejudiced any of the parties herein. 21. Resultantly, this application is not found to be maintainable and the same is dismissed. In view of the above quoted passage of paragraph-28 of the case of Ramesh Chand Ardawatiya (supra), following the same, this Court is inclined to observe that the petitioner shall be at liberty to file his own suit based on the cause of action for the proposed counter-claim as well as other factor necessary for maintaining such suit, if so filed. 22. The parties are left to bear their own costs. 23. The parties, who are represented by the learned counsel shall appear before the court of learned Civil Judge No.3, Kamrup (M), Guwahati on 13.11.2017 without any further notice of appearance and by producing a certified copy of this order seek further instruction from the said learned court.