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2018 DIGILAW 1053 (JHR)

Md. Amir Kasim v. Shahda Khatoon

2018-05-10

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioner, plaintiff in Title Suit No.154 of 2002, is aggrieved of order dated 29.05.2012 passed in Title Appeal No.92 of 2007 by which application for amendment in the plaint has been declined. 2. Title Suit No. 154 of 2002 was instituted by the petitioner for a decree for declaration of his right, title and interest over the suit property and for a decree for declaration that the sale deed dated 06.02.2001 shall not affect his right, title and interest over the suit schedule property. Suit was dismissed by judgment dated 29.06.2007; the petitioner has preferred Title Appeal No.92 of 2007 against the judgment passed in Title Suit No.154 of 2002. In the pending appeal the petitioner has filed an application under Order 6, Rule 17 CPC for amendment in the plaint for incorporating the following paragraphs: 1. After para-10 following be added: 10A) That the plaintiff for the first time came to learn about the alleged purported gift alleged to have been made by Md. Idris in favour of the defendant nos. 1 & 2, from the written statement filed by the defendant no.1 & 2 The plaintiff learnt from the written statement that the defendant no.1 & 2 claimed to have acquired the property on the basis of the purported gift dated 5.6.98. It is asserted that the purported gift deed dated 5.6.98 is not genuine and is also not valid. Moreover the purported deed of gift is also not admissible in evidence. 2. After relief (a) following be added: (aa) it be declared that the purported deed of gift dated 5.6.98 alleged to have been executed by Md. Idris in favour of the defendant no.1 & 2 is forged and is also not legal and valid and as such the defendant no.1 & 2 did not acquire any title to the property on the basis of the said purported deed of gift. 3. This application has been dismissed by the appellate court on the ground that the proposed amendment is barred under proviso to Order 6, Rule 17 CPC. 4. Contending that amendment in the pleadings which is necessary for resolving the real controversy in the case should be permitted, Mr. 3. This application has been dismissed by the appellate court on the ground that the proposed amendment is barred under proviso to Order 6, Rule 17 CPC. 4. Contending that amendment in the pleadings which is necessary for resolving the real controversy in the case should be permitted, Mr. Rohitashya Roy, the learned counsel for the petitioner, assailing the legality of the impugned order submits that the application for amendment has been rejected on an erroneous assumption that the proposed amendments cannot be permitted in view of proviso to Order 6, Rule 17 CPC whereas the proviso to Order 6, Rule 17 CPC has been brought in the statute book after institution of the suit. 5. Order 6, Rule 17 CPC confers wide powers upon the court to permit amendment in the pleadings and by now it is well-settled that amendment in the pleadings can be permitted at any stage, even at the stage of final hearing in the suit. No doubt, powers of the court to permit amendment in the pleadings under Order 6, Rule 17 CPC has been restricted under proviso to the said rule and at the time when the suit was instituted Order 6, Rule 17 CPC was not amended, even prior to the amendment in Order 6, Rule 17 CPC the law as it stood was that amendment in the pleadings cannot be permitted if it would cause prejudice to the other party, or that it is intended at filling up lacuna in the case. 6. In Title Suit No. 154 of 2002 specific issues on validity of the gift deed dated 05.06.1998 and the sale deed dated 06.02.2001 were settled. Issues settled in this regard were; (vi) Whether the defendant nos.1 and 2 have right to execute sale deed on 6.02.2001 in favour of defendant no.3. (vii) Whether suit property was validly gifted by Md. Idiris to Shahda Khatoon and Munija Khatoon that is defendant nos.1 and 2? (viii) Whether the deed of sale dated 06.02.01 is forge and fabricated and without any basis. 7. The trial judge has returned findings on these issues against the plaintiff. (vii) Whether suit property was validly gifted by Md. Idiris to Shahda Khatoon and Munija Khatoon that is defendant nos.1 and 2? (viii) Whether the deed of sale dated 06.02.01 is forge and fabricated and without any basis. 7. The trial judge has returned findings on these issues against the plaintiff. Judgment in Title Suit No.154 of 2002 would reveal that during the course of arguments the plaintiff has thrown specific challenge to validity of the gift deed dated 05.06.1998, may be on the ground that it is not a registered instrument but the fact remains that the trial judge has decided this issue against the plaintiff and dismissed the suit by judgment dated 29.06.2007. Contention that the proposed amendment is necessary for adjudication of real dispute in the suit is bereft of substance. After the parties have contested the suit by leading evidence on specific issues it must be construed in law that if the plaintiff has chosen not to challenge the validity of gift deed dated 05.06.1998 and sale deed dated 06.12.2001, it was his conscious decision. It was not a mere error or mistake in drafting. There is no dispute that the defendants in their written statement have pleaded execution of the gift deed dated 05.06.1998 and laid a claim over the suit schedule properties by virtue of sale deed dated 06.02.2001. 8. Order 7, Rule 1 provides the particulars which the plaint must contain and Order 7, Rule 7 CPC provides that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative. Order 8, Rule 3 provides that the defendant shall deny a claim in the plaint specifically and Order 8, Rule 4 provides that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Now, in view of these provisions in the Code, on a plea that without challenging validity of the gift deed dated 05.06.1998 the real controversy involved in the suit cannot be adjudicated effectively, if amendment in the plaint is allowed it would amount to permitting the plaintiff to fill-up lacuna in his case. Now, in view of these provisions in the Code, on a plea that without challenging validity of the gift deed dated 05.06.1998 the real controversy involved in the suit cannot be adjudicated effectively, if amendment in the plaint is allowed it would amount to permitting the plaintiff to fill-up lacuna in his case. Not only such amendment would take the defendants by surprise and cause serious prejudice to them, by resorting to Order 6, Rule 17 CPC the plaintiff is trying to overcome adverse findings recorded by the trial judge in the judgment dated 29.06.2007 passed in Title Suit No.154 of 2002. 9. Merely because the trial judge has erroneously observed that in view of proviso to Order 6, Rule 17 CPC the proposed amendments cannot be permitted, in the above facts, on merits I am satisfied that no interference is warranted with the impugned order dated 29.05.2012. May be the impugned order does not reflect correct position in law, interference in the cases like the present one would amount to conferring a right upon the party which the law otherwise does not provide. By now it is well accepted proposition in law that the High Court may refuse to interfere with a wrong order if such interference would perpetuate the illegality or the final outcome in the case is found correct. 10. In the above facts, I am not inclined to interfere in the matter, and accordingly the writ petition is dismissed.