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2018 DIGILAW 2196 (JHR)

State Of Jharkhand v. Ratni Jatia

2018-10-03

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioner-State of Jharkhand is aggrieved of order dated 04.04.2014 passed in Title (D) Suit No.30 of 1991 by which its application for amendments in the plaint has been rejected. 2. Inspite of due service of notice upon them the respondents have not appeared in this writ proceeding. The petitioner-State of Jharkhand has filed affidavit dated 07.6.2017 on service of notice upon the respondents. 3. The litigation in respect of the suit lands has a chequered history. But before the previous proceedings are recorded, it is necessary to record few facts pleaded in Title (D) Suit No.30 of 1991. The plaintiff has pleaded that the suit schedule property popularly known as ''Rohini Estate'' was a Ghatwali property. The successor of a Ghatwal would inherit the estate, but only the life interest. By a registered lease-deed dated 11.11.1905 a piece of land referred to as "Hill View" was given on lease to Yogendra Nath Bose for 50 years from 1312 BC to 1361 BC, that is, till 1955 A.D. However, in a family settlement dated 08.08.1911 the suit land fell in share of Ekkarinath Bose who transferred the said land in favour of Onkarmall Jatia. The plaintiff has pleaded that the sale-deed in favour of the said Onkarmall Jatia contains a recital that the transfer was subject to the rights and obligations under the lease-deed. The defendants are legal heirs and successors of said Onkarmall Jatia. Further case set-up by the plaintiff is that on expiry of the lease-deed the defendants did not make any application for renewal or extension of lease period either to the ''Rohini Estate'' or the State of Bihar, after the vesting in the State. It is pleaded that there was no verification in respect of the return submitted by the Ghatwal and the ex-landlord also did not submit a copy of the lease granted by the State, however, during search for a suitable land for Circuit House when it was found that the suit land is a lease-hold land and its period has already expired a notice was issued to the Chairman of Sri Onkarmall Jatia Trust and thereafter, Misc. Case No.01 of 1989-90 was instituted. By an order dated 08.12.1989 the Additional Collector, Deoghar held that the lease was valid uptill 1955 and thereafter possession of D.N. Jatia was illegal. Case No.01 of 1989-90 was instituted. By an order dated 08.12.1989 the Additional Collector, Deoghar held that the lease was valid uptill 1955 and thereafter possession of D.N. Jatia was illegal. Aggrieved by this order, D.N. Jatia came to this Court in W.P.(C) No.10301 of 1989. The writ petition was allowed by an order dated 04.04.1990. This order was challenged by the State of Bihar in S.L.P. (Civil) No.9785 of 1990, however, by that time a decision to institute a suit was already taken by the State government. The Special Leave Petition stood disposed of on 16.01.1991, but without prejudice to the right of the State to obtain possession of the land in question, in accordance with law. In the pending suit after the plaintiff had examined two witnesses an application for amendments was filed. The amendment sought in paragraph nos.3, 4 and 11 of the plaint are relevant. These proposed amendments are contained in paragraph nos.4, 5 and 6 of the application dated 03.10.2012, which read as under: "4. That after end of para 3 the following sentence may be added, "The leasehold property the ''Hill-view'' belonging to Jogendra Nath Bose alone was illegally transferred firstly by way of an alleged family settlement dated 08.08.1911 in favour of Ekrari Nath Bose with oblique motive to facilitate its 2nd transaction by way of an illegal sale in favour of Onkar Mall Jetia in clear violation of the terms and conditions of Lease Deed. There being specific mandate in the Lease Deed the Lessee was/is/precluded from entering into any such transfer by any such mode. Accordingly, the alleged family settlement dated 08.08.1911 in favour of Ekrari Nath Bose followed with transfer of the same by way of Sale Deed being ipso-facto bad in law is illegal and invalid under all circumstances". 5. That in para 4 after the full stop as sub para the following may be added. "The lessee having been precluded from entering into the sale of the suit property in contravention to the terms and conditions of the lease deed incurred the liabilities for cancellation of the same ipso-facto. Accordingly there being clear violation of the terms and conditions of the Lease Deed, the lessee lost the same long back. 6. "The lessee having been precluded from entering into the sale of the suit property in contravention to the terms and conditions of the lease deed incurred the liabilities for cancellation of the same ipso-facto. Accordingly there being clear violation of the terms and conditions of the Lease Deed, the lessee lost the same long back. 6. That after the end of para 11 para 11 A may be added, Para 11 A - That the lease in question being neither for the period of infinitum nor perpetual in nature and there being no renewal the same within the period in subsistence it expired, and became disown to the Government." 4. Amendments sought in the first line of paragraph no. 3 of the plaint is formal in nature, still, it has also been rejected by the trial judge. 5. Order VI Rule 17 CPC which permits amendment in the pleadings at any stage of the proceedings is founded on the principles of equity, justice and good conscience. Order VI Rule 17 CPC provides that the court may permit either party to amend his pleadings at any stage of the proceedings, however, Rule 17 CPC itself puts a limitation on powers of the court to permit amendment in the pleadings. It provides that if amendment in the pleadings is necessary for the purpose of determining the real question in controversy between the parties, all amendments in the pleadings can be permitted on such terms as the court may deem just and proper. After Order VI Rule 17 CPC was amended by the Code of Civil Procedure Amendment Act, 2002 and a proviso was inserted therein, further limitation has been put on powers of the court to permit amendment in the pleadings. However, proviso to Order VI Rule 17 CPC itself carves out an exception. It provides that if inspite of due diligence the matter could not have been raised by the parties before the commencement of trial, amendment in the pleadings can be permitted. One thing which needs to be recorded at this stage itself is that rigors of proviso to Order VI Rule 17 CPC are not attracted in this case; the suit was instituted way back in the year 1991 [refer " Bibi Zubaida Khatoon Vs. Nabi Hassan Saheb & Another , (2004) 1 SCC 191" ]. 6. In " Salem Advocate Bar Association, T.N. Vs. Nabi Hassan Saheb & Another , (2004) 1 SCC 191" ]. 6. In " Salem Advocate Bar Association, T.N. Vs. Union of India , (2005) 6 SCC 344 " , the scope of proviso to Order VI Rule 17 CPC has been discussed by the Supreme Court in the following words: 26. ........"The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision". Thus, the fundamental test when amendment in the pleadings shall be permitted is whether the proposed amendment is necessary for adjudicating real dispute between the parties. The expression "real question in controversy between the parties" in Rule 17 CPC must be examined in the context of initial pleadings of the parties. It is such amendment which has a co-relation to the initial pleadings of the parties and which is necessary for adjudicating the real question in controversy that can be permitted; of course subsequent developments, if necessary, also can be incorporated through amendment in the pleadings. 7. A bare reading of the plaint averments would disclose that from the very beginning the plaintiff-State has taken a stand that the lease granted to Yogendra Nath Bose was for a period of 50 years and the lease-hold property on expiry of 50 years has reverted to the State. The plaintiff has asserted that transfer of the lease-hold property in favour of the defendants is in contravention of the conditions for grant of lease and, thus, illegal. When the relevance of the proposed amendments is seen in the context of the plaint averments, the inescapable conclusion that arrives is that the proposed amendments are formal in nature and these are only by way of elaboration of the initial pleadings in the plaint. The trial judge, without examining the fundamental issue whether the proposed amendments in the plaint are necessary for adjudicating the real dispute involved in the suit, has dismissed the application for amendments only on the ground that in a suit which was instituted in the year 1991 the plaintiff has examined only two witnesses by 2012. Evidently, the trial judge has committed serious error in law. Evidently, the trial judge has committed serious error in law. In my opinion, if the proposed amendments in the plaint are permitted it would not cause any prejudice to the defendants; the plaintiff''s stand as disclosed in the plaint are not contrary to the proposed amendments in paragraph nos.3, 4 and 11 of the plaint. 8. Viewed thus, and for the reasons indicated hereinabove, the impugned order dated 04.04.2014 is set-aside. The writ petition is allowed. The proposed amendments shall be incorporated in the plaint and, of course, the defendants shall be permitted to file additional written statement. In view of long pendency of the suit, it is expected that the trial judge shall keep in mind the mandate under Order XVII Rule 1(2) CPC and not grant adjournment to any of the parties, but for just excuse.