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2017 DIGILAW 1453 (GAU)

Pradip Ghosh v. Sardar Jasbir Singh

2017-11-17

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : Heard Mr. K. Bhattacharjee, the learned counsel for the petitioner and Mr. PK Roy Choudhury along with Mr. S. Baruah, the learned counsel for the respondents. 2. By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 18.12.2013 passed by the learned Munsiff No.1, Jorhat in Misc. (J) Case No. 63/2013 arising out of Title Suit No.10/2010, thereby rejecting the application under Order VI Rule 17 of CPC, refusing the payer of the petitioner to amend the plaint. 3. The limited facts relevant for the purpose of this case is that the petitioner is owner of the plot of land which is adjacent to private road measuring an area of 54 Sq.ft. (3.75 Lechas) (54 ft. X 10 ft.), which touched the land of both the petitioner and respondents. The petitioner claimed that he was the owner of a plot of land measuring 2 katha land and further claimed that the respondents who are already the owner of plot of land adjacent to the said road had started to claim the suit path as their own property since 17.01.2010, alleging that they have the right to make construction over the suit property. Thereafter, on 24.01.2010, the respondents No.1 & 2 tried to erect a fencing over the suit path and again on 11.05.2010, the respondents are stated to have threatened the petitioner with dire consequence for which the petitioner had lodged an ejahar before the Jorhat Police. The petitioner had filed T.S. No.10/2010 was filed with the following prayers:- “a. to declare that plaintiff has the right to use the suit path for ingress and outgress to his land as mentioned in the schedule “b” forever. b. to declare that plaintiff and others have the right to use the suit path on the purpose of road and drain only and no one have any right to make any obstruction for ingress and outgress of the suit land. c. granting permanent injunction restraining the defendants/their agents from making any obstructions/construction/erecting any fencing over the suit path. d. cost of the suit be decreed. e. any other relief or relief’s as court deem fit and proper.” 4. c. granting permanent injunction restraining the defendants/their agents from making any obstructions/construction/erecting any fencing over the suit path. d. cost of the suit be decreed. e. any other relief or relief’s as court deem fit and proper.” 4. In the plaint, the petitioner has described his own land to be land covered by Schedule–B and the land of the respondents was described in Schedule-C of the plaint and the path was described in Schedule-A of the plaint. The suit was contested by the respondents No.1 & 2 by filing their written statement. 5. In course of trial, the petitioner had filed a petition bearing Petition No. 2233/2013 dated 24.09.2013 under Order VI Rule 17 read with Section 151 CPC, praying for amendment. It was projected in the said petition that the land of the petitioner was in fact covered by Schedule-C and not by Schedule-B and the mistake in referring to the land described in Schedule –B & C in the plaint was a typing error. It was stated that if the proposed amendment was allowed, the amendment would not affect basic character and/or relief’s prayed for in the suit, if the Schedule-B is permitted to be substituted by Schedule-C and vice-versa. In respect of the prayers made in the said petition, it was stated that the petitioner was seeking relief in respect of Schedule–A property, but through oversight and typing error in prayer ‘a’ of the plaint the word ‘B’ is wrongly quoted and hence, the same is required to be changed to Schedule-A in place of Schedule–B. The respondents No.1 & 2 contested the said application for amendment. 6. Upon hearing the learned counsel for the parties, the learned trial court took a view that the said errors which were pointed out to the petitioner by his predecessor long back by the order dated 12.01.2010, while disposing Misc.(J) Case No.4/2010, wherein it was clearly pointed out that schedules of the plaint do not tally with that of the pleadings. It has been mentioned in the said order that the suit was otherwise posted for judgment and in view of the petition filed under VI Rule 17 CPC, the pronouncement of the judgment was deferred. It has been mentioned in the said order that the suit was otherwise posted for judgment and in view of the petition filed under VI Rule 17 CPC, the pronouncement of the judgment was deferred. Therefore, the learned trial court held that there was no due diligence on the part of the petitioner and rather due to negligence, the petitioner had continued the suit in spite of such gross irregularity in the pleadings. As such, referring to the legal right, which had accrued in favour of the respondents, the petition for amendment was rejected. 7. The learned counsel for the petitioner has submitted that the basic grievance of the petitioner was that the illegal construction would come up on the suit path which affected the right of the petitioner. It is further stated that no relief has been sought in respect of the land described in Schedule-B and Schedule-C of the plaint. Therefore, mis-description of the property while describing the same as Schedule-B and Schedule-C of the plaint was merely a typing error which did not prejudice the respondents nor it created a new cause of action and that if such an amendment is allowed, it would cause no prejudice to the respondents. It is further submitted that the delay in filing the application for amendment cannot be a ground to refuse amendment because the lis between the parties must be decided on the basis of the merit of the suit and if the proposed amendment was allowed, it would assist the court to arrive at a just and proper decision in the matter because the allegation was that the respondents were making construction over the road described in Schedule-A used for ingress and outgress from the land owned by the petitioner. 8. In support of is argument, the learned counsel for the petitioner has referred to the following cases: (i) Mahila Ramkali Devi and others vs. Ram Dey LRs and others, (2015) 13 SCC 132 ; (ii) Abdur Rahman vs. Rulda and others, (2012) 11 SCC 341 ; (iii) State of Madhya Pradesh vs. Union of India and another, (2011) 12 SCC 268 (iv) Pithani Suryanarayana and another vs. Repaka Vekatesh Ravana Kishore and others, (2009) 11 SCC 308 ; (v) Rajesh Kr. Agarwal vs. K.K. Modhi, (2006) 4 SCC 385 ; and (vi) Sajjan Kumar vs. Ram Kishan, (2005) 13 SCC 89 9. Agarwal vs. K.K. Modhi, (2006) 4 SCC 385 ; and (vi) Sajjan Kumar vs. Ram Kishan, (2005) 13 SCC 89 9. Per contra, the learned counsel for the respondents has submitted that in the present case, even if the amendment as proposed are allowed, the plaint would still contain wrong description of the schedule of lands. It is submitted that in paragraph-2 of the petition for amendment, it is projected that in lines No.18, 19 & 32 at para-4 contain the words Schedule-‘B’. He has referred to the said para-4 of the plaint, which is annexed to this application to project that line No.18, 19 & 32 did not contain any reference to the land described in Schedule-B. It is further submitted that at the stage of judgment, if the petitioner is permitted to amend the plaint, it would lead to a retrial of the suit. It is also submitted that in the written statement filed by the respondents, they have taken a specific stand in para-10 thereof that the respondents No.1 & 2 are the purchaser of 2 katha 3 lecha land from the respondent No.3. It is further submitted that as regards mis-description of property in the plaint, the respondents had cross examined the petitioner as PW.1 and in course of cross examination, he had admitted that he was the owner of Schedule-B land and, as such, it is submitted that not only the petitioner refused to acknowledge the mistake of description of land owned by him in course of cross examination, but prior to that the learned trial court had refused injunction on the same ground of wrong description of suit property. Therefore, the subsequent prayer for amendment is nothing but an after-thought when the petitioner realized at the hearing of the suit that the suit would fail. It is also submitted that the petitioner has failed to explain the lack of due diligence and also failed to show that there was no negligence on his part in belatedly filing the application for amendment of plaint. 10. It is also submitted that the petitioner has failed to explain the lack of due diligence and also failed to show that there was no negligence on his part in belatedly filing the application for amendment of plaint. 10. In order to buttress his point, the learned counsel for the respondents has referred to the following cases: (i) Arshad Sheikh vs. Bumi Prasanna Kinda , (2014) 15 SCC 711 ; (ii) Mashyak Grihanirman Sahakari Santha Maryadit vs. Usman Habir Dhuka and others, (2013) 9 SCC 485 ; (iii) J. Samuel and others vs. Fattu Mahesh and others, (2012) 2 SCC 300 ; (iv) Eastern Business Pvt. Ltd.vs. Manika Dhar and others, 2009 (2) GLT 785; and (v) Deewan Mazumdar Ali vs. Musstt. Mehabbu Begum and others, 1997(2) GLT 608 11. Considered the arguments advanced by the learned counsel for both sides and also perused the materials on record. It is seen that reference to Schedule-B is not there in line No.18, 19 & 32 of paragraph-4 of the plaint. It is further seen that insofar the prayer ‘a’ is concerned, if the existing Schedule-B is substituted by Schedule-A, it would lead to an anomalous situation, which is contradictory to the stand taken by the petitioner in the plaint. Although the learned counsel for the petitioner has earnestly urged that the petitioner is seeking right over the existing path described in Schedule-A, if the word Schedule-B appearing in the prayer ‘a’ is substituted by Schedule-A, it would only lead to an interpretation that not only the plaintiff has the right to use the path described in Schedule-A but the land of the petitioner is also one covered by Schedule-A. However, in the opinion of this Court, the said prayer has two distinct parts, first, being the right to use the suit path and second part consists of his right to ingress and outgress to his land mentioned in the Schedule-B as per the stand taken in the plaint. Therefore, if the Schedule-A is substituted in place of Schedule-B, it would mean that the petitioner was seeking right to use Schedule-A as his land and therefore, the interpretation of the learned counsel for the petitioner is not found to be acceptable because had the petitioner indicated in his payer that the suit path was described in Schedule-A, then the petitioner would have mentioned in the prayer that the plaintiff had a right to use path described in Schedule-A to ingress and outgress to his land as mentioned in Schedule-B forever. Therefore, the trial court has not committed any infirmity to refuse amendment in terms of the prayer made in the application for amendment. The un-amended prayer ‘a’ is quoted in para-3 above. However, after the amendment of prayer ‘a’, the said payer would read – “a. to declare that plaintiff has the right to use the suit path for ingress and outgress to his land as mentioned in the schedule “A” forever. Thus, now the land claimed by the petitioner to be his own land appears to be covered by Schedule-A, if the proposed amendment is allowed. 12. This Court is conscious of the fact that the merit of the proposed amendment is not required to be gone into while adjudicating an application for amendment. In the present case in hand, this Court is not considering application for amendment in its original jurisdiction but this Court is appreciating the legality of the order passed by the learned trial court and it is in that context, this Court is evaluating the effect of the proposed amendment in order to find out whether the trial court had committed any jurisdictional error in disallowing the prayer for amendment. In the present case, amongst others, owing to the part of the amendment as proposed in paragrarh-2 of the petition for amendment is found to be unacceptable because the lines No.18, 19 & 32 of paragraph-4 does not contain any reference to the Schedule-B. If the prayer ‘a’ as quoted above, is allowed to be amended by substituting Schedule-A, it will not assist the trial court to adjudicate any relevant issues in controversy. 13. Having found that no purpose would be served in allowing the amendment as prayed for, the authorities cited above by the learned counsel for both sides, need not be dealt with. 14. 13. Having found that no purpose would be served in allowing the amendment as prayed for, the authorities cited above by the learned counsel for both sides, need not be dealt with. 14. Coming to the question of due diligence, it is seen that in the present application for amendment, the lines No.18, 19 & 32 of paragraph-4 of the plaint has no reference to the Schedule-B land as projected in the amendment petition, the explanation of due diligence in moving the amendment application is not found to be exist at all. Moreover, the fact that there was wrong description of suit land was brought to the notice of the petitioner herein by the learned trial court by order dated 12.01.2010, while dismissing Misc. (J) Case No.4/2010, was within the knowledge of the petitioner, no ground exist to arrive at a conclusion that there was no lack of due diligence why such amendment could not be proposed before the commencement of trial. 15. As a result, this revision fails and accordingly, the same is dismissed. Parties are left to bear their own cost. 16. The parties, who are represented by their learned counsels are directed to appear before the learned trial court on 15.12.2017 without any further notice of appearance and by producing a certified copy of this order, shall seek further instruction from the learned trial court. 17. LCR be returned back forthwith.