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2018 DIGILAW 714 (GAU)

SUBRATA DEB NATH v. ASHOK KUMAR DAS

2018-04-27

KALYAN RAI SURANA

body2018
JUDGMENT & ORDER : 1. Heard Mr. N.N. Jha, the learned counsel for the petitioner as well as Mr. R.K. Mour, the learned counsel appearing for the respondent. 2. By filing this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 10.09.2015 passed by the learned Civil Judge No. 2, Kamrup (M) , Guwahati in T.S. No. 378/2013, thereby rejecting the prayer for amendment made under Order VI Rule 17 read with Section 151 CPC. 3. The petitioner is the plaintiff in the said T.S. No. 378/2013. The said suit was instituted on 11.01.2013. The respondent had filed his written statement on 15.03.2015, disclosing therein certain statements, which is the basis of filing the petition for seeking amendment of the plaint. After availing several adjournments, the petitioner had filed the prayer for amendment vide petition No. 6094/2014 dated 20.12.2014. In short, the purpose of amendment is to bring the present address of the respondent at Kolkata on record, as well as to bring on record a copy of the Advocates notice dated 16.11.2013, issued on behalf of the respondent as well as the copy of reply dated 04.12.2013, issued to the Advocate of the petitioner herein. The respondent herein had filed his written objection to the said amendment petition and the learned trial court by the order impugned herein, rejected the prayer for amendment on the ground that the petitioner could not show due diligence and that there was no explanation why the petition for amendment could not be preferred prior to commencement of trial. The learned trial court had held that the prayer for amendment was hit by the proviso of the provisions of Order VI Rule 17 CPC. 4. The learned counsel for the petitioner submits that by the nature of the amendments sought for, there was no amendment to the cause of action for the suit and the intention of the petitioner was to bring on record the correct address of the respondent and two above referred notices, which was within the knowledge of the respondent and would not cause any prejudice to the respondent. By referring to the case of Pankaja & another Vs. Yellappa (D) by LRs. By referring to the case of Pankaja & another Vs. Yellappa (D) by LRs. & Ors., (2004) 6 SCC 415 , it is submitted that in the present case, the nature of amendment does not take away any right which had accrued in favour of the respondent and that the facts sought to be introduced was not barred by limitation and moreover, both the Advocates Notices were exchanged during the course of trial. Hence, on the basis of the case of Pankaja (supra), it is submitted that the prayer for amendment ought to be allowed. 5. Per-contra, the learned counsel for the respondent, by referring to the extract of the order sheet, which he had filed along with affidavit-in-opposition, submits that after filing of the evidence-on-affidavit, the petitioner had sought for various adjournments on 19.07.2014, 21.08.2014, 22.09.2014 and 15.11.2014 and on the thereafter on 20.11.2014, the petition for amendment was filed. It is submitted that the learned trial court had not committed any jurisdictional error because there is no statement in the petition that as to why the petitioner could not file a petition for amendment before commencement of trial. It is further submitted that the statements made in respect of the proposed amendments were already brought on record by virtue of statements made in the written statement filed on 15.03.2014 and that by filing the petition for amendments on 20.11.2014, after eight months, the petitioner had been successful in dragging the suit for about four years now. It is submitted that as the respondent had taken the defence in respect of the statements sought to be incorporated by way of amendment of the plaint, there was no impediment on part of the petitioner to lead evidence on the said matter even without praying for amendment of the plaint. Hence, it is submitted that the prayer for amendment was rightly refused and the impugned orders does not call for any interference from this Court. 6. Having seen that by way of amendment, the petitioner is seeking to incorporate the correct address of the respondent. Hence, it is submitted that the prayer for amendment was rightly refused and the impugned orders does not call for any interference from this Court. 6. Having seen that by way of amendment, the petitioner is seeking to incorporate the correct address of the respondent. In this regard, this Court is of the view that even without applying for amendment of the plaint, to incorporate the correct postal address of the parties, either party to the suit is permitted to file a statement in a prescribed form about the change of the registered address of the parties, as provided for in Rule 14-A of Order VI CPC. The said Rule not only enables the parties to file the correct address of the parties for service of notice from time to time, but it is provided such address would be known as "registered address" of the parties and the said address would hold good for the purpose of serving of all process in the suit or in the appeal as well as in the execution proceedings. Therefore, amendment of plaint for the purpose of incorporating the address of the defendant for service of notice is held to be unnecessary as the same can be done by taking recourse to the provisions of Order VI Rule 14-A CPC. 7. The nature and purport of the amendment sought to be introduced by way of incorporating paragraphs No. 20 (A) to 20 (D) is to bring on record the Advocates notices dated 16.11.2013 and 04.12.2013. This is the event which had taken place after the institution of the suit. Notwithstanding that the evidence-on-affidavit was filed on 19.07.2014, it is seen that from 15.03.2014 when the written statement was filed till 20.11.2014 when the petition for amendment was filed, there was no inordinate delay. The prayer for amendment has been filed after the trial has commenced. Considering the fact that the additional pleadings which are sought to be brought on record, notwithstanding the delay and latches which has occurred in the presentation of prayer for amendment of the plaint, the same is not found to cause any prejudice to the respondent herein even if the amendment is allowed because of the nature of defence taken in the written statement wherein the said two Advocates notices are referred. Moreover, the nature of amendment sought for does not have any effect on the cause of action for the suit. 8. No right which has accrued in favour of the respondent would be taken away if the amendment is allowed. Moreover, the present suit is based on the prayer for specific performance of contract and therefore, if the proposed amendment is allowed by allowing incorporating of the statement made in paragraphs No. 20 (A) to 20 (D), the factual matrix already on record does not change. Therefore, the petition for amendment is found to be bonafide. Under the circumstances, the courts are not powerless to allow amendment of plaint, though belated, as it does not cause any prejudice to the respondent. 9. In that view of the matter, this Court is of the view that the learned trial court has committed jurisdictional error by not appreciating the nature of amendments prayed for and failed to consider that the factual matrix sought to be introduced by way of proposed amendment is already on record by way of statements made in the written statement. In that view of the matter, this Court is of the opinion that even if the petitioner does not amend his plaint on the basis of the statement made in the written statement, it would be still be open to him to lead evidence for the purpose of denial of the plea taken by the respondent in the written statement, hence, this Court finds that the respondent would not suffer any prejudice if the amendment is allowed. 10. Accordingly, the impugned order dated 10.09.2015 passed by the learned Civil Judge No. 2, Kamrup (M), Guwahati in T.S. No. 378/2013 is hereby set aside. As a consequence, the prayer for amendment vide petition No. 6094/2014 dated 20.12.2014 stands partially allowed. The learned trial court shall permit the amendment of plaint by incorporating paragraphs No. 20 (A) to 20 (D), as provided in the petition for amendment. 11. In order to curtail any delay in the proceeding of the suit, it is provided that the petitioner shall file the amended plaint within the outer limit of 14 (fourteen) days from today. The learned trial court shall grant liberty to the respondent to file his additional written statement in respect of the amended portion, within a period of 1 (one) month thereafter. The learned trial court shall grant liberty to the respondent to file his additional written statement in respect of the amended portion, within a period of 1 (one) month thereafter. In order to prevent further delay, it is also provided that the evidence-on-affidavit already filed on record by the petitioner shall be permitted to be kept on record. However, for the amended portion of the plaint, the learned trial court shall grant liberty to the petitioner to file additional evidence-on-affidavit, based on the written statement filed by the respondent No. 1 by granting not more than 4 (four) weeks after the filing of the additional written statement by the respondent herein. 12. The cross-examination of the PW-1 and 2 are deferred till the filing of the additional evidence-on-affidavit by the PW-1, on which date, all the plaintiffs witness may be present in the court for their cross-examination. 13. As the petition for amendment was after the commencement of trial, this Court is inclined to impose a cost of Rs.5,000/- to be paid by the petitioner to the respondent herein, which is made a condition precedent before filing of the amendment plaint. The cost shall be deposited before the learned trial court. 14. The parties, who are duly represented by their respective learned Counsels herein, are directed to appear before the Court of the learned Civil Judge No. 2, Kamrup (M), Guwahati on 03.05.2018, without any further notice of appearance and by producing the certified copy of this order, shall seek further instructions from the said learned court.