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2017 DIGILAW 361 (GAU)

Oliul Islam Choudhury v. Mashuk Ahmed

2017-03-22

KALYAN RAI SURANA

body2017
JUDGMENT AND ORDER : 1. Heard Mrs. R. Choudhury, the learned counsel for the petitioners and Mr. N. Dhar, the learned Counsel for the respondents. 2. By filing this application under Article 227 of the Constitution of India, the petitioners have challenged the order dated 30.04.2016 passed by the learned Munsiff No. 1, Karimganj in Misc. (J) Case No. 210/15 arising out of TS No. 296/12, by which petition filed by the petitioners for amendment of the plaint was rejected. 3. The petitioners projected in their petition for amendment of the plaint in short is that the time of institution of the suit they inadvertently and by mistake did not mention that their source of title were derived from Registered Deeds bearing No. (i) 8315 dated 01.08.1969, (ii) 7550 dated 13.06.1980, (iii) 105 dated 22.01.1987, (iv) 1917 dated 09.03.1977. It was further projected that one Fakrul Islam Choudhury had died leaving behind the plaintiffs No. 1, 2 and 3 and one Nazmul Islam Choudhury as his sons, but the said Nazmul Islam Choudhury had already died long before the death of his father and on his death, Nazmul Islam Choudhury had no share in the properties of Late Fakrul Islam Choudhury. It was also projected that the Respondents No. 1 to 4 herein, in their counter-claim, it was stated that one Zamin Ali had two wives and the children from first wife were settled elsewhere and the suit land was gifted to the children from second wife. These facts were required to be incorporated in the plaint by amendment. The specific amendments were described in schedule contained in the said petition for amendment. The same is extracted below:- (1) In page 2 para No. 1 line No. 3 after the word proforma defendant No. 3 and the word over the required to be deleted and in place 13 to 21 is required to be written. (2) In page No. 3 para No. 3 after line No. 3 and before line no. 14 the following line is required to be written as “deed No. 8315 dated 01.08.1969, deed No. 7550 dated 13.06.1980, deed No. 105 dated 22.01.1987 and deed No. 1917 dated 09.03.1977. (3) In page No. 4 para No. 5 line No. 3 and Nazmul Islam Choudhury is required to struck off. 14 the following line is required to be written as “deed No. 8315 dated 01.08.1969, deed No. 7550 dated 13.06.1980, deed No. 105 dated 22.01.1987 and deed No. 1917 dated 09.03.1977. (3) In page No. 4 para No. 5 line No. 3 and Nazmul Islam Choudhury is required to struck off. And in page No. 5 para No. 5 after the word “licencee under plaintiffs and before the word thereafter the following line is required to be written as “Nazmul Islam Choudhury was another son of Fakrul Islam Choudhury who died during the life time of his father Fakrul Islam Choudhury leaving proforma defendant No. 5 to 12. (4) (ii) In page No. 4 para No. 5 in line No. 8 thereafter to proforma defendant No. 5 to 12 is required to be struck off. (5) In page No. 9 para No. 11(a) line No. 3, 5-22 are required to be struck off and in place 13 to 21 is required to be written. (6) In page No. 9 prayer No. line No. 4 after the word 3rd schedule and before the word ‘and’ land is required to be struck off and in place ‘houses’ are required to be written. 4. The respondents filed their written objection, wherein they took a plea that the petitioners herein were attempting to repair their plaint and fill up the lacuna based on the statements made in the written statement by the respondents. Moreover, it was stated that the deeds which the petitioners sought to include in plaint by way of amendment were all along within their knowledge and the documents were in their custody. It was further stated that the petitioners had all opportunity to disclose all necessary facts while filing written statement against the counter-claim. It was also stated that the statements made in the petition were ambiguous and that the suit was pending at the stage of PW since 14.08.2014 and as such, the petition was filed at a belated stage. 5. The learned trial court, upon hearing the parties dismissed the said petition for amendment on the ground that the suit was filed in the year 2012 and it cannot be believed that the petitioners came to know about those deeds in the year 2015, when the said petition for amendment was filed. 5. The learned trial court, upon hearing the parties dismissed the said petition for amendment on the ground that the suit was filed in the year 2012 and it cannot be believed that the petitioners came to know about those deeds in the year 2015, when the said petition for amendment was filed. Moreover, the subject matter of proposed amendment are matters which could have been raised at the time of institution of the plaint and if such amendment is allowed, it would change the nature and character of the plaint. The court found absence of due diligence and by relying on the case of Prithi Pal Singh vs. Amrik Singh, (2013) 9 SCC 576 , it was held that the proposed amendment would be contrary to principles enunciated therein. 6. The learned counsel for the petitioners has argued that the share of the petitioners in the suit land would stand altered by operation of the principles of Mohammedan Law on Late Nazmul Islam Choudhury having predeceased his father Late Fakrul Islam Choudhury and consequently, the amendment would be necessary for just and proper adjudication of the real issues in controversy. Moreover, it was submitted that if amendment is not allowed, it would lead to multiplicity of litigation. 7. Per contra, the learned counsel for the respondents has submitted that the learned trial court had passed a well reasoned order and on appreciating the materials on record, it was found that the amendment, if allowed, would run contrary to the principles land down in the case of Prithi Pal Singh (supra). It is forcefully argued that there is total absence of any pleading showing why due diligence was not exercised before the commencement of trial. The other submissions are that the trial of the suit had commenced and the suit was pending at the stage of evidence of PWs since the year 2014. 8. On perusal of the materials on record, it is seen that the learned court had relied on the decision of the Hon'ble Apex Court in Prithi Pal Singh (supra). The following sentence is used by the learned trial court in the impugned order, which reads as follows:- “In the instant case, instant petition for amendment is not covered by such proposition of law. The following sentence is used by the learned trial court in the impugned order, which reads as follows:- “In the instant case, instant petition for amendment is not covered by such proposition of law. In Prithi Pal Singh and Another vs. Amrik Singh and Others, reported in (2013) 9 SCC 576 , Hon’ble Supreme Court held that the following principles ought to be taken into account while considering an application for amendment: (a) Whether the amendment sought is imperative for proper and effective adjudication of the case; (b) Whether the application for amendment is bona-fide or mala-fide; (c) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (d) Refusing amendment would in fact lead to injustice or multiple litigation; (e) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; It can be ascertained after following the aforesaid principles in Prithi Pal Singh case, as aforesaid, that the proposed amendment in the instant case is of such a nature which is not at all hit by or covered by all the aforesaid principles so as to allow the amendment. The proposed amendment is the present case is not in tune with or at par with all the principles enunciated in Prithi Pal Singh’s case, as aforesaid.” 9. On perusal of the said judgment of Prithi Pal Singh (supra), this court has not found the said observations contained therein. Under the circumstances, this court has no option but to hold that the impugned order dated 30.04.2016 passed by the learned Munsiff No. 1, Karimganj in Misc. (J) Case No. 210/15 arising out of TS No. 296/12 was not passed on applying the correct ratio of the case of Prithi Pal Singh (supra). 10. Nonetheless, the Hon'ble Apex Court in the case of Vidyabai & Others vs. Padmalatha & Another, (2009) 2 SCC 409 , has held that the proviso to the provisions of Order VI Rule 17 of Code of Civil Procedure is couched in mandatory form and the court’s jurisdiction to allow such an application is taken away, unless the conditions precedent therefore are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. 11. 11. This court is of the opinion that if the impugned order is revisited by applying the said ratio of the decision in the case of Vidyabai (supra), it is seen that in the petition praying for amendment, there is no attempt to offer any explanation why due diligence could not be exercised before the commencement of trial, when the petitioners got ample opportunity to explain the matter in written statement to the counter-claim and/or to present an application for amendment of the plaint before the trial had begun. Hence, it is on this count that the order passed by the learned trial court cannot be otherwise faulted with, save and except the incorrect reading of the judgment cited by it, which is not found to have vitiated the said order on merit. The petitioners are also not found to be prejudiced by the same. 12. Be it mentioned that the learned trial court had observed in the impugned order that the Opposite Parties had stated that the suit is pending at the stage of Plaintiff’s witness since 14.08.2014. However, although the date of filing of the said petition is not mentioned in this revision or in the copy thereof which is annexed to this revision, but from the date given in the verification to the said petition, it appears that the said amendment petition was filed in the month of October, 2015. Even in this revision, there is no explanation from the petitioner as to what prevented them from applying for such amendment before commencement of trial. Moreover, it is seen that the petitioner has not even made any statement in this revision application that the trial had commenced way back on 14.08.2014. The case is found to have been presented as if after filing written statement to the counter-claim, the petition for amendment of the plaint was filed. The same is viewed by this court as suppression of material facts as the petitioners did not make any statement that the said petition was filed after 1 year 2 months after trial had begun. Therefore, not only there is delay and latches in presenting the petition for amendment but the petitioners are also not found to have approached this court with clean hands by disclosing all material facts, which disentitles the petitioners to any equitable relief and gives this court one more reason not to allow the present revision. Therefore, not only there is delay and latches in presenting the petition for amendment but the petitioners are also not found to have approached this court with clean hands by disclosing all material facts, which disentitles the petitioners to any equitable relief and gives this court one more reason not to allow the present revision. 13. As it is found that the learned Court of Munsiff No. 1, Karimganj had incorrectly read the case of Prithi Pal Singh (supra), this court in exercise of superintending jurisdiction under Article 227 of the Constitution of India is required to explain to the concerned Presiding Officer that a “judgment” is a decision on the facts of the said case. In the said case, the issue before the court was “if amendment of plaint is allowed and incorporated, whether the amendment in the plaint would relate back to the date of filing of the suit.” Therefore, the Hon'ble Supreme Court was not deciding the general principles of when amendment should be allowed. The trial courts would be cautious in appreciating the ratio of the judgments cited by them as they have a duty to see that correct law is applied under the facts and circumstances of the case. With the said hope, the Registry is directed to forward a copy of this order to the learned Presiding Officer, who was at the relevant date i.e. on 30.04.2016 presiding as the Learned Munsiff No. 1, Karimganj, just for the purpose of his introspection. It is made clear that this observation is not intended to read as if this court is making any comments on the said learned Officer or that any caution is directed against the said officer, but this comment is only for the sake of advice only. 14. For the reasons as indicated in paragraphs 10, 11 and 12 above, this revision is found to be devoid of any merit. Hence, the revision is dismissed. The parties are left to bear their own cost. 15. The parties are directed to appear before the Court of learned Munsiff No. 1, Karimganj on 04.04.2017 to seek further instructions from the said learned court and, as such, it would not be required for the said learned court to issue any further notices to any of the parties for commencement of trial.