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2018 DIGILAW 961 (JHR)

Suresh Prasad v. Sri. Suraj Kumar Bhadani

2018-04-30

SHREE CHANDRASHEKHAR

body2018
ORDER Shree Chandrashekhar, J. - The petitioner, plaintiff in Title Suit No. 112 of 2007, is aggrieved of order dated 05.11.2009 by which amendment in the plaint has been declined by the trial Judge. 2. Title Suit No. 112 of 2007 was instituted by the petitioner for a decree for specific performance of the agreement dated 01.06.2007 and for a direction to the defendant to register a sale-deed in favour of the plaintiff on payment of the balance consideration of Rs. 30,25,000/-. Suit was contested by the defendant by filing written statement taking a plea of non-joinder of party, that is, Rabindra Nath Chakraborty who allegedly had 1/5th undivided share in the schedule property under the agreement dated 01.06.2007. The defendant has pleaded that a general power of attorney was executed by Rabindra Nath Chakraborty, Birendra Nath Chakraborty, Mrs. Lita Chakraborty and Ahindra Nath Chakraborty in his favour appointing him their constituted attorney in respect of 4/5th share in the schedule property. Execution of agreement dated 01.06.2007 has been denied asserting that it was a forged and fabricated document. In paragraph no. 19 of the written statement the defendant has pleaded that a part of Schedule-A property, more particularly 4/5th share of the aforesaid persons, has already been transferred by him. This averment in the written statement, according to the plaintiff, necessitated filing of an application for amendment in the plaint. Through the application for amendment dated 08.07.2009 the plaintiff intends to add a new paragraph after paragraph no. 15 of the plaint: "15A. That the sale deed bearing Deed No. 3843 dated 17.05.2005 purported to have been executed by Rabindra Nath Chakraborty, Birendra Nath Chakraborty, Smt. Lita Chakraborty and Ahindra Nath Chakraborty signed by their attorney Suraj Kumar Bhadani, the defendant no. 1 of this suit in favour of M/s. Vinayak Home Makers, a partnership firm represented by its partners Kaushal Kishore Bhadani, Suraj Kumar Bhadani (defendant no. 1) and Sujeet Kumar Bhadani is a null and void, the same has not acted upon and has not conferred any title in favour of defendant No. 2 and is not binding on the plaintiff." Suraj Kumar Bhadani, the aforesaid partner had full knowledge and notice of the said agreement for sale". 3. The plaintiff has also sought to incorporate another prayer in the suit; "C/1. 3. The plaintiff has also sought to incorporate another prayer in the suit; "C/1. For a decree for declaration that the sale deed bearing Deed No. 3843 dated 17.05.2005 purported to have been executed by Rabindra Nath Chakraborty and others through their attorney in favour of defendant no. 2 is null and void, not acted upon and has not conferred any title in favour of defendant no. 2 and not binding on the plaintiff." 4. Observing that a part of the schedule land has already been sold prior to institution of the suit, the trial judge by the impugned order dated 05.11.2009 has declined amendment in the plaint. 5. Contending that alleged transfer of the suit property by the defendant in favour of M/s. Vinayak Home Makers in which he is a partner was never given effect nor pleaded in Execution Case No. 06 of 2008, Mr. Amit Kumar Das, the learned counsel for the petitioner submits that in view of subsequent disclosure of a new fact amendment in the plaint became necessary. 6. As against the above, Mr. Indrajit Sinha, the learned counsel for the respondent submits that if the proposed amendments in the plaint are permitted not only nature of the suit would change, it would amount to changing the cause of action disclosed by the plaintiff for instituting the suit, which is not permissible in law. 7. Order 6, Rule 17 CPC confers wide powers to the court to permit amendment in the pleadings and by now it is well-settled that amendment in the pleadings can be permitted at any stage of the suit, even at the stage of final hearing. Proviso to Order 6, Rule 17 CPC, however, restricts powers of the court to permit amendment in the pleadings. It provides that normally after trial in the suit has commenced amendment in the pleadings shall not be permitted. Proviso to Order 6, Rule 17 CPC has been held mandatory. However, through judicial pronouncements exceptions to the aforesaid restriction contained under proviso to Order 6, Rule 17 CPC have been carved out. If amendment in the pleadings is necessary for resolving the actual controversy involved in the suit it shall be permitted, however, it should not cause prejudice to the other party and does not change the nature of the suit. In "State of A.P. and Ors. If amendment in the pleadings is necessary for resolving the actual controversy involved in the suit it shall be permitted, however, it should not cause prejudice to the other party and does not change the nature of the suit. In "State of A.P. and Ors. v. Pioneer Builders, A.P." reported in (2006) 12 SCC 119 , the Supreme Court has observed thus: 21. "Principles governing amendment of pleadings are well settled. Order 6, Rule 17 CPC deals with the amendment of pleadings and provides that the court may at any stage of the proceedings allow either party to alter or amend pleadings in such a 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. It is trite that though an amendment cannot be claimed as a matter of right under all circumstances, yet the power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice. It is equally well settled that unless serious injustice or irreparable loss is likely to be caused to the other side, the court should adopt liberal approach and not a hypertechnical approach, particularly in a case where the other side can be compensated with costs. Dominant object to allow the amendment in the pleadings liberally is to avoid multiplicity of proceedings. (see L.J. Leach & Co. Ltd. v. Jardine Skinner & Co., Ganga Bai v. Vijay Kumar and B.K. Narayana Pillai v. Parameswaran Pillai) Nevertheless, one distinct cause of action cannot be substituted for another nor the subject-matter of the suit can be changed by means of an amendment. The following passage from the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings:(IA pp. The following passage from the decision of the Privy Council in Ma Shwe Mya v. Maung Mo Hnaung succinctly summarises the principle which may be kept in mind while dealing with the prayer for amendment of the pleadings:(IA pp. 216-17) "All rules of court are nothing but provisions intended to secure the 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 nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit." 8. In a suit for specific performance issue involved would be whether the plaintiff is entitled for specific performance of the agreement or not; only validity of the agreement, readiness and willingness of the plaintiff to perform his part under the agreement and limitations under the Specific Relief Act, 1963 are examined by the Court. Validity of the sale-deed which was executed prior to execution of the agreement dated 01.06.2007 cannot be tested in a suit for specific performance. If the proposed amendments are permitted, as rightly contended by the learned counsel for the respondent, it would change the cause of action disclosed by the plaintiff for instituting Title Suit No. 112 of 2007. In fact, the suit for specific performance would be converted, if the proposed amendments are permitted, into one for cancellation of the sale-deed. The controversy sought to be raised by the plaintiff can be looked into from another angle also. The plaintiff is seeking specific performance of agreement dated 01.06.2007 and his apprehension is that by executing the sale-deed, may be in his capacity as the constituted attorney, the defendant has tried to pre-empt any right flowing to the plaintiff by virtue of agreement dated 01.06.2007. Pleadings in Title Suit No. 112 of 2007 would, however, disclose that it is the defendant who by virtue of sale-deed dated 17.05.2005 has sold the property in favour of M/s. Vinayak Home Makers in which he himself is a partner. Evidently, the defendant has also acquired right, title and interest in himself by virtue of sale-deed dated 17.05.2005 and while so, execution of the sale-deed dated 17.05.2005 cannot be a ground on which the suit may fail. Evidently, the defendant has also acquired right, title and interest in himself by virtue of sale-deed dated 17.05.2005 and while so, execution of the sale-deed dated 17.05.2005 cannot be a ground on which the suit may fail. The application for amendment was apparently misconceived. 9. In the above facts, I am not inclined to interfere with the impugned order dated 05.11.2009 and accordingly the writ petition is dismissed