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2018 DIGILAW 205 (CAL)

Amit Chowdhury v. Anamika Chowdhury

2018-02-01

SHIVAKANT PRASAD

body2018
JUDGMENT : Shivakant Prasad, J. In this revisional application the petitioner/defendant no. 3 on being aggrieved by the Order No. 47 dated September 19, 2016 passed by the learned Judge, 6th Bench, City Civil Court at Calcutta in Title Suit no. 703 of 2013 (Anamika Choudhury v. Embassy Co-operative Housing Society Limited) has impugned the said order, inter alia, on the grounds that learned Court below has acted illegally with material irregularity by deciding to hear analogously the petitioner's application under Order 7 Rule 11(d) as well as the application of the petitioner/opposite party for amendment of the plaint under Order 6 Rule 17 of the Code. 2. It is contended that the plaint case reveals a challenge of the action on the part of the defendant no. 1 which is a dispute referable to the Registrar under the West Bengal Co-operative Societies Act, 2006 as the suit before the Trial Court is barred under Sections 102 and 145 of West Bengal Co-operative Societies Act, 2006 because the reliefs claimed by the plaintiff in the plaint is against the Co-operative Society and defendant no. 1 of the suit. The cause of action as made out in the plaint is as under— “That the CAUSE of ACTION for the above mentioned suit firstly arose on 18th January, 2011, when the Plaintiff by her written letter/representation had requested the Defendant No. 1 to transfer the extent of the share of her deceased father, to her as his sole Nominee, with regard to the suit property and when the Plaintiff was physically obstructed and illegally restrained by the men, agents and staffs of the Defendants No. 1 to 3 and further arose on 27th April, 2013 and the same continues till date. The cause of action of this suit arose at Premises No. 4, Shakespeare Sarani, P.S Shakespeare Sarani, Kolkata-700-071m which is situated within the jurisdiction of this learned Court.” 3. The cause of action of this suit arose at Premises No. 4, Shakespeare Sarani, P.S Shakespeare Sarani, Kolkata-700-071m which is situated within the jurisdiction of this learned Court.” 3. It would also be apt to reproduce the prayer as made in the plaint as under— (a) A DECREE for DECLARATION, that the Plaintiff is entitled to use, enjoy and occupy the entire suit premises with all its amenities and facilities including uninterrupted water and electric supply unto the suit premises; (b) An Order of PERMANENT INJUNCTION thereby restraining the Defendants including their men, agents, servants and associates from creating any sort of disturbances and/or impediment in any form or in any manner whatsoever in enjoyment of the entire suit premises including parking of car in its earmarked space and free ingress and egress to and from the suit premises with uninterrupted water and electric supply to the suit premises.” 4. It is submitted that though the cause of action in a suit is a bundle of facts made in the plaint nevertheless the lis is against the defendant no. 1 Co-operative Society as reflected from a letter dated 16th January, 2011 of the plaintiff requesting to transfer the extent of share of her deceased father namely, late Kalyan Choudhury to her as his sole nominee with regard to the suit property. 5. Having entered appearance, the petitioner/defendant no. 3 filed an application under Order 7 Rule 11(d) read with Section 151 of CPC. It is submitted by Mr. Siddhartha Mitra, learned Advocate for the petitioner by inviting my attention to paragraph 8 of the plaint that since the plaintiff/opposite party has raised a dispute with regard to membership before the defendant no. 1, the plaint requires rejection as barred under the provision of Section 145(2) of the West Bengal Co-operative Societies Act, 2006 which provides that save as provided in the said Act no Civil Court or Revenue Court or Consumer Disputes Redressal Forum shall have jurisdiction in regard to anything done or any action taken or any order passed under this Act and in particular in regard to (d), any dispute required to be referred to the registrar under Section 102 of the said Act which provides that the disputes of the nature shall be filed before the Registrar of the Co-operative Societies. Section 102(4) provides that any Civil Court or any Consumer Dispute Redressal Forum shall not have any jurisdiction to try any dispute as mentioned in Sub-section 1. 6. Thus, the petitioner prayed for rejection of the plaint of the suit as barred by provisions of Sections 102 and 145 of the West Bengal Cooperative Societies Act, 2006. The plaintiff/opposite party raised objection but filed an application under Order 6 Rule 17 of CP Code for amendment of the plaint by inter changing the defendants' status by arraigning the defendant no. 3 as defendant no. 1 and the defendant nos. 1 and 2 as proforma defendant nos. 2 and 3 respectively in the cause title of the plaint. 7. It would appear from the Annexure-A at page 92 that the defendant no. 3 Mr. Amit Chowdhury is an allottee member of Embassy Co-Op. Housing Society Ltd. in respect of Flat 5A and Kolkata Municipal Corporation, Assessment Collection Department has given the details of the demands made by it and it is the present petitioner/defendant no. 3 who has paid the gross amount of demands as raised by the Kolkata Municipal Corporation. 8. Annexure-H also goes to show the Invoice in the name of the defendant no. 3 in favour of the General Maintenance Charges Generator Maintenance Charges etc. 9. The letter dated 18th January, 2011 at page 145 reflects that the plaintiff Anamika Chaudhury/the opposite party addressed to the Chairperson, Embassy Co-operative Housing Society Ltd. for transfer of extent of the shares of his deceased father namely Late Kalyan Choudhury to her as his sole nominee with regard to Flat No. 5A of the Co-operative Society. 10. She also lodged G.D on 18th January, 2011 to the Officer-in-Charge, Shakespeare Sarani Police Station with regard to lost/misplacement of Share Certificate reflecting that Certificate No. 3 (Distinctive Nos. 5-6), Certificate No. 121 (Distinctive Nos. 359-360) and Certificate No. 175 (Distinctive Nos. 646, 647, 648) have been lost or misplaced while cleaning the said flat. 11. She issued reminder on 21st June, 2012 to the Chairperson, Embassy Co-operative Housing Society Ltd. apprising that she is the sole nominee of her father who died on 8th September, 1999 claiming that her father was the member of the Co-operative Society since 9th August, 1986 and requested to record her name in the Registrar of the Co-operative Society. 12. She issued reminder on 21st June, 2012 to the Chairperson, Embassy Co-operative Housing Society Ltd. apprising that she is the sole nominee of her father who died on 8th September, 1999 claiming that her father was the member of the Co-operative Society since 9th August, 1986 and requested to record her name in the Registrar of the Co-operative Society. 12. On 27.4.2013 she also lodged a complaint to the Officer-in-Charge of the said Police Station alleging that when she went to her Flat on 27.4.2013 at about 5 p.m. the defendant nos. 1 and 2 physically restrained her from entering into her flat and pushed her by catching hold of her left arm and claiming that she is in physical possession and occupation of the said flat as the sole nominee of her deceased father in respect of the 1½ of the total share according to the deed of lease and the probate granted by the Hon'ble Court. 13. It is pointed out that the plaintiff/opposite party herein prayed for amendment of the plaint and a draft amended plaint has been placed before this Court though not accepted by the trial Court, however, on plain reading of the plaint, it would reveal that plaintiff has claimed to be recorded as an allottee member in respect of the suit flat under the Cooperative Society being the defendant no. 1 and defendant no. 2 being the Secretary of the defendant no. 1. 14. Mr. Mitra referred to a decision in case of Ma Shwe Mya v. Maung Mo Hnaung (1922 Privy Council) wherein it has been held in respect of the practice of the amendment of a new case that all rules of Courts are nothing but provisions intended to secure to be proper administration of justice, and it is therefore essential that they should be made to serve and be subordinate to that purpose so that full powers of amendment must be enjoyed and should always be liberally exercised but none the less no power has been given to enable one distinct cause of action to be substituted for another, nor to change, by amendment, the subject matter of the suit. 15. It has been observed that the provisions as to amendment are those that are to be found in the Code of Civil Procedure of 1908. 15. It has been observed that the provisions as to amendment are those that are to be found in the Code of Civil Procedure of 1908. Section 153 of that Code enacts that “The Court may at any time and on such terms as to costs or otherwise as he may think fit amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding” and by Order VI, rule 17, “The Court may at any stage of the proceedings, allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties. 16. Mr. Mitra also referred to a case of Kanda v. Waghu reported in AIR (37) 1950 Privy Council 68 wherein it has been clearly held in para 12 as under— “12. In asking the Board to allow the plaint to be amended at this stage attention has been drawn to the provisions of S.153 and O. 6 R. 17, Civil P.C The powers of amendment conferred by the Code are very wide, but they must be exercised in accordance with legal principles, and their Lordships cannot allow an amendment which would involve the setting up of a new case. The judgment of Lord Buckmaster in Ma Shwe Mya v. Maung Mo Hnaung, 48 I.A 214 at p. 217: (A.I.R (9) 1922 P.C 249) is directly in point. It was there held that it was not open to a Court under S. 153 and O. 6, R. 17, to allow an amendment which altered the real matter in controversy between the parties. The application for leave to amend is rejected.” 17. As regards cause of action Mr. Mitra relied on authority held in case of Churh of Christ Charitable Trust and Educational Charitable Society v. Ponniamman Educational Trust reported in AIR (2012) 8 Supreme Court 706 wherein it has been observed in Paragraphs 13, 14 and 15 thus— “13. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. While scrutinising the plaint averments, it is the bounden duty of the trial court to ascertain the materials for cause of action. The cause of action is a bundle of facts which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. Every fact which is necessary for the plaintiff to prove to enable him to get a decree should be set out in clear terms. It is worthwhile to find out the meaning of the words “cause of action”. A cause of action must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. 14. In A.B.C Laminart (P) Ltd. v. A.P Agencies, this Court explained the meaning of “cause of action” as follows: (SCC p. 170, para 12) “12. A cause of action means every fact, which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded. It does not comprise evidence necessary to prove such facts, but every fact necessary for the plaintiff to prove to enable him to obtain a decree. Everything which if not proved would give the defendant a right to immediate judgment must be part of the cause of action. But it has no relation whatever to the defence which may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff.” 15. It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai, wherein a three-Judge Bench of this Court held as under: (SCC p. 328, para 28) “28. It is useful to refer the judgment in Bloom Dekor Ltd. v. Subhash Himatlal Desai, wherein a three-Judge Bench of this Court held as under: (SCC p. 328, para 28) “28. By ‘cause of action’ it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court, (Cooke v. Gi11); in other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit.” It is mandatory that in order to get relief, the plaintiff has to aver all material facts. In other words, it is necessary for the plaintiff to aver and prove in order to succeed in the suit.” 18. In Saleem Bhai v. State of Maharashtra reported in (2003) 1 SCC 670 : AIR (2003) 1 Supreme Court 557 it has been held thus— “The trial Court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit— before registering the plaint or after issuing summons to be defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Rule 11(a) & (d) of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The trial court's order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The cases are therefore, remitted to the trail court for deciding the application under Order 7 Rule 11 CPC on the basis of the averments in the plaint, after affording an opportunity of being heard to the parties in accordance with law.” 19. In Kumaraswami Gounder v. D.R Nanjappa Gounder (dead) reported in AIR 1978 Madras 285 it has been observed in paragraph 19 thus— “19. Having regard to the age of this litigation, and also for the reason that the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, we are unable to allow this application for amendment. Having regard to the age of this litigation, and also for the reason that the amendment sought for sets up a totally different cause of action which ex facie cannot stand on a line with the original pleading, we are unable to allow this application for amendment. A pleading could only be amended if it is to substantiate, elucidate and expand the pre-existing facts already contained in the original pleadings; but under the guise of an amendment a new cause and a case cannot be substituted and the courts cannot be asked to adjudicate the alternative case instead of the original case. Though it is expedient under certain circumstances to take into consideration the supervening facts in the course of a litigation which is long drawn, yet the march and lapse of such time alone cannot be the foundation to mechanically accept the request for amendment because due to such passage of time, several events have happened and several matters have intervened. It would be hazardous to accept such an application for amendment to a plaint on the only ground of passage of time and change of circumstances, for, that would run counter to the essential ratio governing the principle of amendment of pleading which is that no amendment can introduce a cause of action which was never thought of originally or could not have been thought of earlier and which is diametrically opposite to that stated in the original plaint. We are also of opinion that the application for amendment is an afterthought and therefore, lacks bona fides. This is so because the plaintiffs denied that Peria Ramana Gounder had a sister by name Kaliammal and his filing of the suit during the lifetime of Kaliammal is obviously in deliberate disregard of truth. The courts below found that the plaintiffs should have been aware that Kaliammal was alive on the date of suit and their pretended ignorance about it was not tolerable. We dismiss the application for amendment.” 20. Accordingly, it is urged that the learned trial Court ought not have allowed the amendment of the plaint in the manner prayed for by the plaintiff/opposite party, because the plaintiff claimed to be recorded as an allottee member in respect of the suit flat under the said defendant no. 1 Society. 21. Per contra, Mr. Sourav Sen learned Advocate for the plaintiff/opposite party no. 1 Society. 21. Per contra, Mr. Sourav Sen learned Advocate for the plaintiff/opposite party no. 1 contended by referring to a decision in case of AIR 1951 Cal. 262 , AIR 1060 Cal. 540, 2009 (3) CHN 24 decided on the principle as laid down in AIR 1951 Cal 262 wherein it is settled provision of law that merely filing an application for rejection of the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure does not take away the power of the Court to amend the plaint inasmuch as the court will allow the plaintiff to amend the plaint so that the defect may be cured and further contended that there is no contention made on behalf of the petitioner/defendant that suit is not maintainable in the Civil Court and in such it can be said that the amended plaint as it stands today if filed as new suit will be maintainable in the eye of law under the provision of The West Bengal Co-operative Act, 2006. 22. It is further contended that in the present case, the amendment did not alter cause of action or the character of the suit nor did it change the identity of the defendant who remained the same. It is only brought out correctly the capacity of the defendant inasmuch as no right accrued which can be said to have been destroyed and relied on citations in (1969) 2 SCC 187 : AIR 1969 SC 1297 , (1978) 2 SCC 91 : AIR 1978 SC 484 and (2012) 8 SCC 706 . 23. I do not defer on the principle laid down in the aforesaid decisions but if the previous plaint and draft amended plaint are compared with and taken into consideration by reading together then it would transpire that the relief sought for by the plaintiff/petitioner is a dispute with regard to a membership in a Co-operative Society and such a dispute cropped up between the plaintiff/opposite party no. 1 being the sister of the defendant no. 3 petitioner herein which is referable to the Registrar Co-operative Society under Section 102 of West Bengal Co-operative Societies Act, 2006 and it would be barred under Section 145(2) of the said Act. 1 being the sister of the defendant no. 3 petitioner herein which is referable to the Registrar Co-operative Society under Section 102 of West Bengal Co-operative Societies Act, 2006 and it would be barred under Section 145(2) of the said Act. It would not be out of the context to take note of the fact that the plaintiff/opposite party is claiming membership based on the lease which was executed by defendant no. 3 an allottee member of the suit flat under the Co-operative Society who usually resides in Germany who had given the consent in favour of the opposite party/plaintiff for the grant of probate in respect of will of her father, but the grant of such probate on the consent of defendant no. 3 does not meant that right title interest and possession in respect of the suit flat has been relinquished by the defendant no. 3 who is the allottee member. He had simply allowed his father to occupy the flat under the lease up to 2019. 24. Therefore, the circumstances in which she claims to be an allottee member is a dispute referable to registrar as per the provision of Section 102 of West Bengal Co-operative Societies Act read with Section 145(2) of the said Act as the Civil Court has no jurisdiction. 25. Consequently, the suit is barred under the law and plaint is liable to be rejected under Order 7 Rule 11(d) of C.P Code. 26. I find that amendment as sought for by the plaintiff ought not have been allowed and dispute should have been relegated to the jurisdiction of Registrar Co-operative Society. 27. In the above premises I set aside the Order No. 47 dated September 19, 2016 passed by the learned Judge, 6th Bench, City Civil Court at Calcutta in Title Suit no. 703 of 2013 and remit the matter to the learned trial Court with direction to decide the application under Order 7 Rule 11(d) of the CPC on the basis of averments by giving opportunity to the parties of being heard afresh. 28. Certified website copies of this judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.