Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 714 (CAL)

Tapan Dey v. Arun Mullick

2017-08-25

SAHIDULLAH MUNSHI

body2017
JUDGMENT : 1. This revisional application is directed against order no.66-A and 67 dated 14th July, 2016, passed by the learned 10th Judge, City Civil Court at Calcutta in Title Suit No.1253 of 2009 rejecting the petitioners’ application for amendment of plaint under Order VI, Rule 17 of the Code of Civil Procedure. 2. The background fact on which the petitioners have filed an application for amendment of the plaint is as follows: 1. During pendency of the suit the defendant no.1, having wrongfully and illegally transferred and conveyed his undivided 1/3rd share in the suit premises to a stranger (now defendant no.2) the plaintiff filed an application under Order I, Rule 10(2) of the Code of Civil Procedure for addition of the said transferee (defendant no.2) and such prayer of the plaintiff was allowed; 2. Consequent to such addition of defendant no.2, an application for amendment was also made by the plaintiff and vide order dated 14th June, 2011, such application for amendment was allowed; 3. The plaintiff amended the plaint and amended plaint was filed on 20th June, 2011. Subsequent to the said amendment, issues were framed on 1st September, 2014 and a date was fixed for hearing of the suit on 17th September, 2014; 4. Although, the amendment as sought for by the plaintiff was allowed vide order dated 14th June, 2011, the plaintiff yet was advised to file another application for amendment of the plaint inasmuch as the earlier amendment which was filed on 18th November, 2010 and allowed on 14th June, 2011, was not exhaustive and that the prayers which were required to be altered in the changed circumstances after addition of defendant no.2 could not be made even after the amendment was allowed on 14th June, 2011 and, therefore, the petitioners filed an application for amendment; 5. The said subsequent amendment application was filed on 17th September, 2014, however, the petitioners did not explain the aforesaid circumstances in detail under which the application for amendment was sought for and was, ultimately, filed on 17th September, 2014. This application, so filed on 17th September, 2014 was, however, allowed by the learned Court below vide order dated 20th February, 2015; 6. This application, so filed on 17th September, 2014 was, however, allowed by the learned Court below vide order dated 20th February, 2015; 6. The said order was challenged by the defendant in C.O. No.1497 of 2014 and this Hon’ble Court was pleased to set aside the said order dated 20th February, 2015 without going into the merits of the case but on the issue that the application for amendment was field after framing of issue, without explaining due diligence in view of the proviso included in the provisions of Order VI, Rule 17 of the Code of Civil Procedure, which came into effect on amendment of the Code of Civil Procedure with effect from 1st July, 2002. While setting aside the said impugned order this Hon’ble Court observed: “In this case, the opposite parties/plaintiffs would not state any fact in the amendment application that what prevented them from filing amendment application before framing of the issues. In absence of any pleading in terms of proviso to Rule 17 of Order VI of the Code of Civil Procedure, the learned Court below had no jurisdiction to entertain the amendment application.” 3. In the aforesaid background of the matter the plaintiff/petitioners have filed a fresh application for amendment of the plaint explaining the grounds which were wanting in the earlier application. Application has been annexed to the revisional application being Annexure ‘P-2’. 4. Despite service no one entered appearance to contest the revisional application. Matter was taken up on successive days but no appearance was made on behalf of the defendants. 5. According to the plaintiff that keeping in view the observation made by this Hon’ble Court that no explanation was given earlier with regard to his due diligence, he has taken out a fresh application explaining the circumstances under which he had made the application and it appears from the impugned order that defendant appeared and prayed for adjournment to reject such prayer for adjournment but the application for amendment was taken up for hearing in presence of the learned advocate for the plaintiff. After hearing the plaintiff the learned Court below made an observation: “In absence of any pleading in terms of proviso to Rule 17 of Order VI of the Code the learned Court below has no jurisdiction to entertain the amendment application ... ... After hearing the plaintiff the learned Court below made an observation: “In absence of any pleading in terms of proviso to Rule 17 of Order VI of the Code the learned Court below has no jurisdiction to entertain the amendment application ... ... if that be so, then it is very difficult for this Court to allow the present amendment application which is relating to the same facts. Of course, Ld. Lawyer of plaintiffs tried to convince this Court that in this petition it has been mentioned that for what reason the plaintiffs could not file amendment petition before framing of issues. Anyway, since an order has been passed by the Hon’ble Court setting aside the order passed by this Court relating to amendment for insertion of same facts that is why it will not be proper for this Court to pass any order where Hon’ble Court has expressed his view not to allow the said amendment petition.” 6. Even on a cursory reading of the order impugned it gives an impression that the learned Court below hesitated to allow the application for amendment owing to setting aside his earlier order by this Court. From the impugned order it does not appear or nowhere it has been mentioned that the plaintiff has failed to explain before the Court the reason why the application for amendment was filed after framing of issues and as to why it could not be done so at the earlier occasion when an application for amendment was filed and allowed. However, from the impugned order it does not appear that the learned Court below has mentioned that the learned advocate for the plaintiff tried to convince the Court about the compulsion under which this subsequent amendment application has been taken out by his client. If that be so, it can be construed that sufficient materials were disclosed before this Court on the basis of which this observation was arrived at by the Court. Now, the question arises even if a party gives proper explanation with regard to the filing of a belated application for amendment on cogent ground whether the same can be thrown away. The only issue is that it is made at a belated stage. The explanation offered by the plaintiff has not been controverted by the defendant, nor has it been disbelieved by the Court below. The only issue is that it is made at a belated stage. The explanation offered by the plaintiff has not been controverted by the defendant, nor has it been disbelieved by the Court below. Therefore, there is no reason for the Court to hold that it will not be proper for the learned Court below to allow the application for amendment. The second issue which prompted the Court not to allow the application, in my reading, is that after framing of issue a Court should not allow amendment application in view of amended provisions of Rule 17 under Order VI of the Code of Civil Procedure. Mr. Chakraborty, while arguing the case, laid stress on this issue and relied on various decisions reported in the case of – *Uma Pada Sen & Ors. Vs. Debasis Sen & Ors. (2015(4) ICC 665) which says that “... trial would commence on a date when the affidavit as to the examination-in-chief is filed and not on the date of framing of the issue ...” *Sayed Ali Mallick & Ors. Vs. Ramjan Ali & Ors. (2012 LawSuit (Cal) 709) wherein a Hon’ble Single Bench of this Court interpreted the word ‘trial’ based on various judgments of the Hon’ble Apex Court in the context of an application under Order VI, Rule 17 read with Section 151 of the Code of Civil procedure after amendment and it has been held that “it appears that no date has been fixed in case for filing of affidavit-evidence under Order XVIII, Rule 4 of the Code of Civil Procedure. At this juncture, the petitioners filed an application of amendment of the plaint under Order VI, Rule 17 of the Code of Civil Procedure read with Section 151. Ultimately, Court came to a finding that “I, therefore, hold that the trial in the instant case has not commenced for the purpose of Order 6, Rule 17 of the Civil Procedure Code, as amended, and the power of Court to permit amendment as prayed for has not been whittled down by the aforesaid proviso.” *Baldev Singh Vs. Manohar Singh (2006 LawSuit (SC) 618) wherein a Division Bench of the Hon’ble Apex Court held - “ ... Manohar Singh (2006 LawSuit (SC) 618) wherein a Division Bench of the Hon’ble Apex Court held - “ ... commencement of trial as used in proviso to Order 6, Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted hereinafter, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6, Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings.” *Sampath Kumar Vs. Ayyakannu (2002 LawSuit (SC) 881). In this decision Court held that “pre-trial amendments are allowed more liberally than those which were sought to be made after the commencement of the trial or after conclusion thereof.” *Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon (1969 LawSuit (SC) 135) held – “however, negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice. To the other side. ... In our view, there is no rule that unless in an application for amendment of the pliant it is expressly averred that error, omission or misdescription is due to a bona fide mistake, the Court has no power to grant leave to amend the plaint.” 7. Therefore, considering the ratio in the above-mentioned judgments it does not raise any doubt that in the fact situation of the present case the learned Court below ought to have allowed the application for amendment. It is apparent on the face of the order impugned that the learned Court below has failed to exercise a jurisdiction vested in it in law by not allowing the application for amendment despite the petitioners properly espoused their cause in support of the application for amendment and which, in fact, was taken note of by the learned Court below. 8. 8. Having regard to the ratio decided in the aforementioned cases referred to hereinbefore, I am of the clear view that the learned Court below ought to have allowed the application for amendment and it has disallowed the application only because of the observations made by this Court but in any event, the learned Court below ought to have made its independent finding based on law and having failed to do so it has acted with material irregularity which warrants interference of this Court and, accordingly, I set aside the order impugned, I allow the revisional application as also the application for amendment filed by the plaintiff. 9. The plaintiff is directed to file amended plaint before the learned Court below within a fortnight or on the next date of hearing, whichever is later. Needless to mention that the petitioners will also serve a copy of the amended plaint to the defendants, the petitioners are directed to file additional written statement within a period of four weeks from the date of service of the amended plaint upon them. 10. In the facts and circumstances of the case there will be no order as to costs. 11. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned advocates for the respective parties upon compliance of all usual formalities.