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2018 DIGILAW 433 (CAL)

Ashoke Kumar Bhotika v. Asha Rao

2018-06-21

SHIVAKANT PRASAD

body2018
JUDGMENT : Shivakant Prasad, J. 1. In this revisional application petitioner has challenged the order dated June 6, 2017 passed by learned Civil Judge (Senior Division), 4th Court, Alipore, District- 24 Parganas in connection with Title Suit No. 20 of 2009 previously numbered as Title Suit No. 100 of 1994, inter alia, on the grounds that if the order of amendment is allowed to stand with the averments made in Paragraphs 1A, 3A, 3B, 3C and 8A and the properties mentioned in Schedule D, then it would amount to change in the nature and character of the suit; secondly, incorporation of new facts by way of amendment would lead to de novo trial and thirdly, that amendment of plaint was allowed at a belated stage without explanation in delay in filing amendment petition and lastly, that the plaintiff/opposite party No. 1 was aware of probate case filed in the year 2013 but no such fact has been incorporated in the amended plaint dated June 17, 2015. 2. To speak precisely, the opposite party No. 1 as the plaintiff filed a suit for partition by metes and bounds and accounts against the defendants. The defendant No. 1/petitioner herein and defendant No. 7 Savitri Devi Botika, (since deceased) have contested the suit by filing written statement on 26.4.1995 and additional written statement was filed by D.W. 1 and D.W. 7. The defendant No. 2 also filed separate written statement on 04.01.2008 denying all material particulars made in the plaint. The plaintiff/opposite party No. 1 had filed an application under Order 6, Rule 17 of the Code of Civil Procedure, on November 21, 1996 contending that she stays in Bangalore and was unable to get hold of the properties of late Durga Prasad Botika, deceased father of the petitioner as well as plaintiff. The said application was allowed and amended plaint was filed on September 4, 1997. After the plaintiff/opposite party No. 1 closed her evidence, D.W. 1 adduced evidence but no step was taken on behalf of the D.W. 2 as he did not produce any witness for further examination. So, learned Court had no option but to close evidence of D.W. 2. After the plaintiff/opposite party No. 1 closed her evidence, D.W. 1 adduced evidence but no step was taken on behalf of the D.W. 2 as he did not produce any witness for further examination. So, learned Court had no option but to close evidence of D.W. 2. Then the defendant No. 2 filed an application under section 151 of the Code of Civil Procedure, 1908 on April 7, 2011 for reconsideration of the order dated January 6, 2010 and the learned trial Court allowed the prayer of D.W. 2 to adduce evidence since there was a mistake in fixing the date for cross-examination of P.W. 1 by defendant No. 2 on May 18, 2011 and another mistake cropped up by fixing the date for cross-examination of D.W. 1 on May 27, 2011 by the defendant No. 2 whose evidence was already closed on July 11, 2001, the petitioner preferred an appeal being FMA 546 of 2007 before this Hon'ble Court against the order which was allowed directing the defendant No. 1, the petitioner herein to maintain accounts and submit quarterly statement before the trial Court and further directed to expedite the suit as far as possible by June 30, 2011. The petitioner had also moved an application under Article 227 of the Constitution of India on being aggrieved by the order dated May 6, 2011 by which D.W. 2 was allowed to give evidence and also preferred a revisional application against order dated May 18, 2011 and civil revisional applications being CO. 2108 of 2011 and CO. 2533 of 2011 disposed of analogously by the order dated 29.8.2014. The plaintiff/opposite party No. 1 filed another application under Order 6, Rule 17 read with section 151 of CPC which was also allowed by the learned Trial Court vide order dated June 6, 2017. 3. Mr. Probal Kumar Mukherjee, learned counsel for the petitioner submitted that by the impugned amendment, new facts have been incorporated when the trial has been completed and successive amendments have been carried by the plaintiff with full knowledge of probate case only to delay the proceeding in the suit and so also the probate suit. 4. Mr. Mukherjee submitted that plaintiff's evidence was completed in the year 1998 and so also the evidence of D.W. 1 was completed. 4. Mr. Mukherjee submitted that plaintiff's evidence was completed in the year 1998 and so also the evidence of D.W. 1 was completed. So, the amendment should not have been allowed by the trial Court as it results in de novo trial of the suit. To fortify his such contentions, he relied on a decision in case of Aktar Hossain & Ors. v. Susama Rani Sahoo & Ors. reported in (2001) 3 CHN 228 wherein relying on another decision of the Apex Court in A.K. Gupta and Sons Limited v. Damodar Valley Corporation ( AIR 1967 SC 96 ), holding that in the matter of allowing amendment of pleading, the general rule is that a party is not allowed by amendment, to set up a new case or a new cause of action. Reliance is also placed in case of Sadhu Sharan Singh v. Deonath Saran Rai (AIR 1943 Patna 206 Full Bench) holding, "if is neither permissible in law nor desirable in equity to allow amendment of plaint which would change cause of action for the suit and would mean a retrial of the whole case on a new footing at a late stage and in the cited decision the Hon'ble Judge taking cue from the judgment referred above held in the same line that it is not permissible by amendment to change the nature and character of the suit as framed which would involve filing of fresh written statement and fresh trial. 5. Now, the facts of the reported decision referred to by Mr. Mukherjee is required to be taken into consideration as it would appear from the observation made in Paragraph 13 of the cited judgment. It was a suit for dissolution of partnership and taking of partnership accounts and in such suit the Court before passing a final decree may pass a preliminary decree declaring the proportionate share of the parties and a preliminary decree was passed and it was at the stage of passing final decree. It was a suit for dissolution of partnership and taking of partnership accounts and in such suit the Court before passing a final decree may pass a preliminary decree declaring the proportionate share of the parties and a preliminary decree was passed and it was at the stage of passing final decree. Although, the Court is authorized to allow either party to alter or amend his pleadings when such amendments are necessary for the purpose of determining the real question in controversy between the parties but in the said set of facts, it was held that the proposed amendment was not necessary for the purpose of determining the real question in controversy between the parties to the suit and no amendment can be allowed which would mean a retrial of the whole case on a new footing at a late stage and, further, it is not permissible by amendment to change the nature and character of the suit as framed which would involve filing of fresh written statements and a fresh trial, ergo, the cited judgment is not apposite to the facts and circumstances of the instant case, as the suit is a suit for partition and evidence is not complete to warrant passing of the preliminary decree. 6. Mr. Pradip Kumar Dutta learned counsel for the opposite party No. 1 submitted that this is not a case where the nature and character of the suit is changed by way of amendment of the pleading. This is a suit for partition amongst the co-sharer and the parties have continuing cause of action till the disposal of the suit and amendment can be allowed at any stage of the suit. 7. Next, it is submitted that the Court is not called upon to consider the merit of suit while considering an application for amendment under Order 6, Rule 17 of the Code of Civil Procedure. It is also submitted that delay in seeking amendment is also not a consideration for rejection. 8. Admittedly, being aggrieved by order passed by the learned Trial Court, the present petitioner had preferred revisional application being CO. No. 2108 of 2011 which was disposed of on 29.8.2014 and the amendment under Order 6, Rule 17 of the Code of Civil Procedure was filed on 13.02.2015 in the trial Court. D.W. 2 was cross-examined on 06.01.2010. 8. Admittedly, being aggrieved by order passed by the learned Trial Court, the present petitioner had preferred revisional application being CO. No. 2108 of 2011 which was disposed of on 29.8.2014 and the amendment under Order 6, Rule 17 of the Code of Civil Procedure was filed on 13.02.2015 in the trial Court. D.W. 2 was cross-examined on 06.01.2010. So it cannot be held that there has been a delay in trial by reason of the amendment taken out by the plaintiff/opposite party No. 1 amounting to a de novo trial of the suit for partition. 9. The defendant No. 7, mother of the petitioner as well as opposite party No. 1 died on November 2011. The plaintiff acquired the knowledge of a probate suit in respect of Schedule 'C. Thus, it is argued by Mr. Dutta that there is no perversity in the impugned order passed by the Trial Court. 10. I have discussed above that the evidence is not complete as the D.Ws are yet to be examined on oath and no preliminary decree for partition by metes and bound has yet been passed. Admittedly, the petitioner and the opposite parties are brothers and sisters. Some of the properties belonging to defendant No. 7, the mother (since deceased) has been bequeathed by her in favour of the petitioner by a registered Will for which a probate suit under challenge is now pending before a competent Court of law. 11. I am of the opinion, in a suit for partition there can be hundreds of preliminary decree till the preliminary decree reaches its finality by passing of a final decree written up on a requisite, stamp paper. Therefore, in the given facts of the case in my humble opinion the decision in Aktar Hossain & Ors. (supra) is quite distinguishable, save and except the principle as laid down in case of Phoolchand v. Gopal Lal reported in AIR 1967 SC 1470 wherein it has been clearly held that in partition suit even after the preliminary decree an amendment is permissible till the passing of the final decree on account of subsequent events leading to variation in shares. Although, this Court is not required to go into merit of the case, nevertheless, I am of the opinion that if the Will is probated in favour of the petitioner, the share of the parties to the suit will vary. Although, this Court is not required to go into merit of the case, nevertheless, I am of the opinion that if the Will is probated in favour of the petitioner, the share of the parties to the suit will vary. Similarly, if the grant of probate is turned down against the petitioner, then also share will vary. 12. Mr. Mukherjee has also relied on a decision in case of Faroja Bibi v. Sk. Mustafa Ali & Ors. reported in 2014(1) ICC 277 in which case the petitioner had filed a suit for declaration of title and consequential relief in 2005. This was obviously after the amendment of Code of Civil Procedure. Amending Act 46 of 1996 which came into force with effect from 1st July, 2002 whereby the proviso to the provision under Order 6, Rule 17 of the Code of Civil Procedure curtailed absolute discretion of the Court to allow amendment at a belated stage without any sufficient explanation. 13. To counter this proposition, Mr. Dutta relied on a decision in case of State Bank of Hyderabad v. Town Municipal Council reported in (2007) 1 Supreme Court Cases 765 wherein the provision of Order 6 Rule 17, the proviso thereto and provision of section 16(2) of Amending Act, 2002 which were taken note of in paragraphs 5, 6 and 7 as under- "5. Order 6 Rule 17 of the Code reads thus: "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 questions in controversy between the parties." 6. The proviso appended thereto was added by the Code of Civil Procedure (Amendment) Act, 2002 which came into force with effect from 1-7-2002. It reads as under: "Provided that no application for amendment shall be allowed after the trial has commenced, unless the court cores to the conclusion that in spite of due diligence, the party could riot have raised the matter before the commencement of trial." 7. Section 16(2) of the amending Act of 2002 reads as under: "16. It reads as under: "Provided that no application for amendment shall be allowed after the trial has commenced, unless the court cores to the conclusion that in spite of due diligence, the party could riot have raised the matter before the commencement of trial." 7. Section 16(2) of the amending Act of 2002 reads as under: "16. (2) Notwithstanding that the provisions of this Act have come into force or repeal under sub-section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897,- (a) (b) the provision of Rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by section 7 of ' this Act shall not apply to in respect of any pleading filed before the commencement of section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and section 7 of this Act." 14. It follows that such provision is not attracted in case of a suit filed prior to the amendment coming into force. The present suit is undoubtedly a suit No. 100 of 1994, filed in the year 1994 the explanation as required vide proviso clause to the amending provision of the Code does not apply in this case. So taking out an amendment at any stage of the suit is permissible. 15. Mr. Mukherjee also refers to a decision in case of Ram Niranjan Kajaria v. Sheo Prakash Kajaria & Ors. So taking out an amendment at any stage of the suit is permissible. 15. Mr. Mukherjee also refers to a decision in case of Ram Niranjan Kajaria v. Sheo Prakash Kajaria & Ors. reported in 2016 SAR (Civil) 57 wherein the Hon'ble Supreme Court quoting the earlier decision in Revajeetu Builders Developers v. Narayanaswamy and Sons and others summarized the principles on amendment which ought to be taken into consideration while dealing with application filed under Order 6, Rule 17 of the Code of Civil Procedure which are profitably reproduced as under- (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 16. In rebuttal, Mr. Dutta submitted that while considering the application for amendment the Court is not supposed to come into the correctness or falsity of the case in the amendment and so also not to enter into the merit of the amendment sought to be made and relied on a decision in case of Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors. reported in AIR 2006 Supreme Court 1647 wherein it has been held thus- "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. Order 6 Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. Order 6 Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties. The real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the amendment will be refused." 17. True, it is equally the cardinal principle enunciated in case of Ram Niranjan Kajaria (supra) that the Court is obliged to look into the principles to understand as to whether the amendment sought is aimed at introducing totally different, new and inconsistent case and the proposed amendment raised any question of inconsistency with a case originally made out or not. If all the properties left by the predecessor-in-interest of the parties to the suit are brought into one hotchpotch, then it does not introduce any new case to change the nature and character of the suit. But the amendment so allowed by the impugned order does not appear to have been passed on proper perusal of amendment proposed. It is crystal clear from the proposed amendment that there are certain averments made being included in the schedule to the properties. The schedule appertaining to the banking accounts also appears to be very vague. Therefore, this aspect ought to have been looked into by the learned Court below. Inconsistency prevails even after amendment as there is no mention of particulars of the accounts with ICICI Bank. 18. By way of amendment the plaintiff/opposite party No. 1 sought for incorporation of certain facts which may be required for adjudication in a suit for partition effectively, if the amendment sought for is to bring all the properties left by the predecessor of the parties to the suit into one hotchpotch and to implead left out co-sharer being the necessary party. Action taken by the opposite party No. 1 for amendment may not be considered as mala fide and prejudicial to the petitioner in a way that cannot be compensated by money value. Action taken by the opposite party No. 1 for amendment may not be considered as mala fide and prejudicial to the petitioner in a way that cannot be compensated by money value. The learned Court below has taken into consideration the submission on behalf of the defendant No. 1/present petitioner and was in agreement bearing in mind the principles laid down in the cited decision in case of Ram Niranjan Kajaria (supra). To my understanding it was only because of the nature of the suit being a partition suit amongst the co-sharers with the finding that the amendment sought for is not barred by limitation as on the date of the application of amendment and allowed the amendments to avoid any multiplicity of litigation between the parties. The suit has not yet been decreed in preliminary form. In a suit for partition, every plaintiff is a co-defendant and every defendant a co-plaintiff. I do understand from the certain amendment sought for and allowed by the learned Trial Court that banking accounts have not been mentioned which are required to be mentioned and once again the plaintiff/opposite party No. 1 would require amendment of the schedule. The schedule property as sought to be amended is not also in tune with the pleading. The schedule to the plaint is generally after the prayer portion and they are required to be set out with the schedule number mentioning the particulars of the properties brought into hotchpotch which are sought to be partitioned. The schedule need not contain any averments and should be averred in the body of the plaint. It is without any doubt that the defendant, the petitioner herein would get an opportunity for contesting the suit in entirety by filing additional written statement and lead evidence controverting the plaint by way of cross-examination of the plaintiffs' witnesses but the amendment of plaint must be carried out well before the evidence is concluded. 19. Mr. Mukherjee rightly pointed out that in case of Sk. Abut Kalam & Ors. v. Umapada Matty & Ors. reported in 2007(2) CLJ (Cal) 781, no ratio is decided as regards the application for amendment of the plaint rather the decision of the Hon'ble Supreme Court has been simply quoted to show the settled position of law that the Court should be very liberal is allowing the prayer for amendment. 20. v. Umapada Matty & Ors. reported in 2007(2) CLJ (Cal) 781, no ratio is decided as regards the application for amendment of the plaint rather the decision of the Hon'ble Supreme Court has been simply quoted to show the settled position of law that the Court should be very liberal is allowing the prayer for amendment. 20. The case of Ragu Thilak D. John v. S. Rayappan & Ors. reported in AIR 2001 Supreme Court 699 has been relied on by learned counsel for the petitioner. The purpose and object of Order 6., Rule 17 of C.P.C. is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. There is no dispute as to the rule but the amendment cannot be claimed as a matter of right and under all circumstances. The only principle laid down is that Court will decide such prayers for amendment and should not be hyper technical in their approach and liberal approach should be the general rule particularly, in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the Courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation. 21. I have respectfully considered the decision referred to and relied on by the rival parties and I am of the considered view that in a suit for partition either of the party has a right to amend their respective pleadings at any stage of the suit. As I have observed in the foregoing paragraph that the suit is at the stage of trial and preliminary decree has not yet been passed, the amendment sought for may be allowed. 22. In the context of what has been observed above, the impugned order as it stands cannot be affirmed as the plaint would require further amendment to clarify the schedule of the properties to the plaint and pleadings should not be included in the schedule of property. 23. 22. In the context of what has been observed above, the impugned order as it stands cannot be affirmed as the plaint would require further amendment to clarify the schedule of the properties to the plaint and pleadings should not be included in the schedule of property. 23. For the reasons aforesaid, I give liberty to the plaintiff/opposite party No. 1 to take out a fresh application for amendment of the plaint in the light of the observation made above, which the learned Court will consider liberally providing an opportunity to the defendant, the petitioner herein to controvert the same by way of additional written statement. 24. Accordingly, the Revisional Application being CO. 3379 of 2017 is disposed of, however, without any order as to costs. Certified website copies of this judgment, if applied for, be urgently made available to the parties, subject to compliance with all requisite formalities.