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2018 DIGILAW 1415 (GAU)

Alauddin Laskar v. Angura Begum

2018-09-21

KALYAN RAI SURANA

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JUDGMENT : Kalyan Rai Surana, J. Heard Mr. S.P Choudhury, the learned advocate for the petitioners as well as Mr. I Alom, the learned advocate for the respondent No.4. 2. By this application under Article 227 of the Constitution of India, the petitioners- plaintiffs have challenged the order dated 10.01.2017, passed by the learned Civil Judge No.1, Cachar, Silchar in T.S. No. 108/2015, thereby rejecting the prayer for amendment of the plaint. 3. The petitioners have instituted the suit claiming right, title, interest and confirmation of possession of the suit land described in Schedules 1 to 4 of the plaint; for declaration that the respondents- defendants have no right, title, interest and possession over the suit land; for permanent injunction; cost, etc. The said suit was registered as TS No. 108/2015. The respondents No.1 to 4 contested the suit by filing their joint written statement. The affidavit in support of the said written statement was sworn by the respondent No.4, who had stated therein that he was the attorney for the respondents No.1 to 3, as such, the said respondents No.1 to 3 have notice of this application. Both sides have submitted at the Bar that the said suit was fixed for evidence of the petitioners and, as such, there is no dispute at the Bar that the trial of the suit had begun. At that stage, the petitioners had filed a petition under Order VI Rule 17 CPC for permitting them to amend the plaint. 4. In the petition for amendment, it was stated that in connection with hearing in Misc. Case No. 208/2015, the petitioners had applied for mutation certificate in respect of their purchased land, which was obtained on 19.03.2016. At that stage, the petitioners had filed a petition under Order VI Rule 17 CPC for permitting them to amend the plaint. 4. In the petition for amendment, it was stated that in connection with hearing in Misc. Case No. 208/2015, the petitioners had applied for mutation certificate in respect of their purchased land, which was obtained on 19.03.2016. It was further stated that in course of inquiry, they had come to know about the existence of some sale deeds by the predecessor of the vendors of the petitioners and the predecessor of the respondents No.1, 2 and 3 in respect of the suit patta and accordingly, the petitioners had obtained (i) registered Sale Deed No. 3038 dated 21.05.1960 executed by one Bhanu Kumar Laskar in favour of Kokil Chandra Das; (ii) registered Sale Deed No. 3629 dated 16.05.1977 executed by one Kanu Ram Das (the father of respondents No.1, 2 and 3) in favour of Ganga Dhar Das; (iii) Registered Gift Deed No. 1124 dated 27.05.1997 executed by the respondents No.1, 2 and 3 in favour of Chandrapur Sarbajanin Shib Bari Committee and that the certified copy of the said three sale deeds were obtained by the petitioners on 16.07.2016, 18.07.2016 and 20.07.2016 respectively. Claiming that the said three registered sale/gift deeds were required to be introduced for effectual trial, the petition for amendment was filed on 09.08.2016. 5. The respondents had contested the said petition for amendment by filing their joint written objection, wherein it was stated that the document proposed to be relied by the petitioners was not relevant as the gift deed did not attract the suit dag and, as such, the purpose of inclusion of the said gift deed was to addle or make turbid the whole suit in order to gain wrongfully by misleading the Court in wrong direction. It was stated that if the amendment is allowed, the nature and feature of the suit including suit land will be changed and deviated from its original character. Hence, it was prayed that the amendment petition be rejected. 6. The learned trial Court, held that the suit was in the evidence stage and the trial had already commenced. It was also held that the petition of the petitioner was vague and silent as to whether the three deeds in question relates to the suit dag. Hence, the petition was rejected. 7. 6. The learned trial Court, held that the suit was in the evidence stage and the trial had already commenced. It was also held that the petition of the petitioner was vague and silent as to whether the three deeds in question relates to the suit dag. Hence, the petition was rejected. 7. The learned advocate for the petitioners has submitted that the three deeds came to their notice after the hearing had commenced. It is submitted that the petitioners had obtained the mutation certificate in respect of their purchased land on 19.03.2016 and that it was at that stage that they had come to know about the existence of three sale deeds by the predecessor of the vendors of the petitioners and the predecessor of the respondents No.1, 2 and 3 in respect of the suit patta and accordingly, the petitioners had obtained (i) registered Sale Deed No. 3038 dated 21.05.1960 executed by one Bhanu Kumar Laskar in favour of Kokil Chandra Das; (ii) registered Sale Deed No. 3629 dated 16.05.1977 executed by one Kanu Ram Das (the father of respondents No.1, 2 and 3) in favour of Ganga Dhar Das; (iii) Registered Gift Deed No. 1124 dated 27.05.1997 executed by the respondents No.1, 2 and 3 in favour of Chandrapur Sarbajanin Shib Bari Committee and that the certified copy of the said three sale deeds were obtained by the petitioners on 16.07.2016, 18.07.2016 and 20.07.2016 respectively. Thereafter, the petition for amendment was filed on 09.08.2016. Hence, the petitioner had disclosed the sequence of events leading to their petition for amendment, which was done at the first available opportunity. In support of his submissions, the learned advocate for the petitioner has placed reliance on the case of Sajjan Kumar Vs. Ram Kishan, (2005) 13 SCC 89 . 8. The learned advocate for the respondent No.4 has submitted that on the basis of the objection by the respondents, the learned trial had arrived at a well considered decision to refuse amendment. By referring to the proviso to Rule 17 of Order VI CPC, it is submitted that unless the party seeking amendment satisfied the Court with regard to the existence of "due diligence", the prayer for amendment made after the commencement of trial was rightly refused in this case. 9. By referring to the proviso to Rule 17 of Order VI CPC, it is submitted that unless the party seeking amendment satisfied the Court with regard to the existence of "due diligence", the prayer for amendment made after the commencement of trial was rightly refused in this case. 9. At the outset, it would be relevant to extract the Schedule of the proposed amendment herein below:- SCHEDULE FOR AMENDMENT 1. In Page-3 after the 4th line and before para-4, a new para-3(A) is to be incorporated by way of amendment as follows:- "3(A) Kokil Chandra Das, S/o. Lt. Indra Mani Das, of Budurail Bosti purchased land measuring 5 Bighas 10 kathas 15 chhatas of land in 2nd R.S. Patta No. 84, Dag No. 271/272/273/274/275/276/419/420/421/424/425/427/429 and in Mouza-Ambicapur Part-VII, 2 nd R.S. Patta No. 58 Dag No. 541/610(Full) land measuring 2 Bighas 6 Kathas 15 Chhataks from Bhanu Kumar Laskar, S/O. Late Bani Ram Laskar by Regd. Sale Deed No. 3038/dtd. 21.05.1960. Said Kohli Chandra Das was one of the predecessor-in-title to the plaintiffs." 2. In Page-4 of the plaint, after para-5 and before para-6, a new para-5(A) is to be incorporated as follows:- "5(A) Kanu Ram Das the father of the defendant No. 1, 2, 3 sold his ownership right, title, interest over land measuring 2 Bighas 11 Kathas 15 chataks in 2nd R.s. Patta No.58 Dag No. 212/246 in Mouza-Ambicapur Part-VII, Pargonah-Barakpar in favour of one Gangadhar Das, S/O. Lt. Nayan Chand Das by way of said vide Regd. Sale deed No. 3628 dated 15.05.1997 of the office of the Joint SubRegistrar Silchar. In the recital of said sale deed, it was affirmed by the vender Kanu Ram Das that he is owner in possession of such land by way of amicable Page No.# 6/8 partition with his brother Bhanu Kumar Laskar @Bhanu Kumar Das. It is further necessary to mention that the defendant No.1, 2, 3 made gift of land measuring 8 kathas 3 chataks in Dag No. 213 of 2 nd R.S. Patta No. 58 in Mouza-Ambicapur Pt. VII, Pargonah-Barakpar, in favour of Chandrapur Sarbajanin Bonder Shibbari Committee to recital of said deed and also affirmed title plaintiffs over the suit land as well as their predecessor-in-interest in title." 10. That as per the ratio laid down by the Hon'ble Supreme Court in the case of Abdul Rehman & Another. Vs. Mohd. VII, Pargonah-Barakpar, in favour of Chandrapur Sarbajanin Bonder Shibbari Committee to recital of said deed and also affirmed title plaintiffs over the suit land as well as their predecessor-in-interest in title." 10. That as per the ratio laid down by the Hon'ble Supreme Court in the case of Abdul Rehman & Another. Vs. Mohd. Rudlu and Others., (2012) 11 SCC 341 , if an application for amendment is made after the commencement of the trial, in that event, the Court has to arrive at a conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. It has been also held that he proviso to Rule 17 of Order VI, to some extent, curtails absolute discretion to allow amendment at any stage and if application is filed after commencement of trial and therefore, it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. In this regard, the petitioners had explained that in course of mutation of suit land in their names, they became aware of the three sale deeds. Thus, by the said statement, the petitioners have explained the exercise of their due diligence. Therefore, as the sale deeds are stated to be relevant for deciding the real issues in controversy, the purpose of amendment is to enable the learned trial Court to adjudicate the real issues in controversy. Thus, by not allowing amendment, the learned trial Court is found to have committed jurisdictional error. 11. In the case of Sajjan Kumar, the Hon'ble Supreme Court had held that the amendment which appears to be necessary for the purpose of bringing to fore the real questions in controversy between the parties. Moreover, in the case of Sampath Kumar V. Ayyahannu & Another., (2002) 7 SCC 559 , referred to in the case of Rajesh Kumar Agarwal Vs. Moreover, in the case of Sampath Kumar V. Ayyahannu & Another., (2002) 7 SCC 559 , referred to in the case of Rajesh Kumar Agarwal Vs. K.K. Modi, (2006) 4 SCC 385 , the Hon'ble Supreme Court has held that the merit of the proposed amendment is not required to be gone into, yet, when the objection has been raised on the two counts of (i) sale deeds do not relate to the suit land, and therefore, (ii) the prayer for amendment was without merit, this Court finds that in the petition for amendment, there is a specific statement that the petitioners had obtained the mutation certificate in respect of their purchased land on 19.03.2016 and that it was at that stage that they had come to know about the existence of three sale deeds by the predecessor of the vendors of the petitioners and the predecessor of the respondents No.1, 2 and 3 in "respect of the suit patta" and accordingly, the petitioners had obtained the three sale deeds referred above. Thus, the petitioners had demonstrated the link of the said sale deed with the "suit patta", within which the suit land is situated. However, in view of the trite law that the merit of the amendment cannot be gone into, the learned trial Court has committed jurisdictional error (a) for entering into the merit of the proposed amendment, and (b) for misreading and misconstruing the statement made by the petitioner, explaining the purpose of proposing an amendment of the plaint. 12. Thus, in view of the discussions above, this Court is constrained to hold that the order dated 10.01.2017, passed by the learned Civil Judge No.1, Cachar, Silchar in T.S. No. 108/2015, impugned herein is not sustainable. Accordingly, this application stands allowed. The said order is set aside and resultantly, the prayer for amendment of plaint made by the petitioners- plaintiffs vide petition No. 12/349 dated 09.08.2016 stands allowed. 13. The parties, who are represented before this Court by their learned advocates, shall appear before the learned Court of Civil Judge No.1, Cachar, Silchar on 08.10.2018 without any further notice of appearance and seek further instructions from the said learned Court. If the said date happens to be a non-working day for any reason, the appearance may be made on the next working day. On the said date, the petitioners shall produce a certified copy of this order. If the said date happens to be a non-working day for any reason, the appearance may be made on the next working day. On the said date, the petitioners shall produce a certified copy of this order. The learned trial Court shall pass consequential orders to grant some reasonable time to the petitioners to file the amended plaint. 14. The parties are left to bear their own cost.