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2019 DIGILAW 46 (GAU)

Kailash Kumar v. Ganesh Kumar

2019-01-17

KALYAN RAI SURANA

body2019
JUDGMENT : Kalyan Rai Surana, J. 1. Heard Mr. R. Ali, the learned advocate for the petitioners and Mr. S. Sarma, the learned advocate for the respondents. 2. By this application under Article 227 of the Constitution of India, the petitioners have assailed the order dated 30.01.2018 passed by the learned Munsiff, Kamrup (Rural), Amingaon in Misc. (J) Case No. 14/2017 arising out of T.S. No. 390/2014, thereby rejecting the prayer for amendment of the plaint. 3. The petitioners are the plaintiffs in TS No. 390/14, which was filed for seeking declaration, recovery of possession and for permanent injunction. The respondents herein were defendants No. 1 to 5 in the suit, who had contested the suit by filing their joint written statement. The proforma defendants No. 6 to 17 did not contest the suit. The plaint was amended previously. Again at the stage of examination of plaintiffs witnesses, Misc. (J) Case No. 14/2017 was registered in respect of petition filed under Order VI Rule 17 read with section 151 CPC. 4. The learned advocate for the petitioners has submitted that although in paragraph-3 of the plaint, mention was made in respect of land covered by Dag No. 467, but in Schedule-A, by mistake, the new Patta No. 467 was not incorporated alongside "old Patta No. 14". Moreover, in paragraph 4 of the plaint, land covered by Dag No. 241 was mentioned, which ought to have been Dag No. 231. Thus, the following amendment was prayed for in the plaint:- a. In 11th line of paragraph 4 of the amendment (sic. could be "amended plaint") in place of Dag No. 241, Dag No. 231 be inserted. b. In the existing Schedule-A of the amended plaint, new Patta No. 467 be inserted with old Patta No. 14. 5. It is submitted that the nature of amendment was only to give correct description of the suit land. However, the same would not change the nature and character of the suit land. Hence, it is submitted that the learned trial Court had erred in law and failed to appreciate that inadvertence to make the necessary amendment on previous occasion while amending the plaint could not be a ground to reject the prayer for amendment of the plaint made on the second and/or subsequent occasion. Hence, it is submitted that the learned trial Court had erred in law and failed to appreciate that inadvertence to make the necessary amendment on previous occasion while amending the plaint could not be a ground to reject the prayer for amendment of the plaint made on the second and/or subsequent occasion. In support of his submissions, the learned advocate for the petitioners has placed reliance on the following cases:- a. Gurbakhsh Singh & Ors. Vs. Buta Singh & Anr., 2018 Legal Eagle 346. b. J. Samuel & Ors. Vs. Gattu Mahesh & Ors., (2012) 2 SCC 300 . c. Suhendu Bikash Lashkar Vs. Narayan Chandra Bhowmik, 2014 (4) GLT 564. d. Eastern Business Pvt. Ltd. & Ors. Vs. Manikadhar & Ors. 2009 (2) GLT 785 : (2009) 4 GLR 762. e. Sandha Debi Thapa Vs. Anjali Debi Thapa & Ors., 2003 (2) GLT 368. 6. Per contra, the learned advocate for the respondents has made his submissions in support of the order impugned herein. It has been submitted that the issues for trial was framed by order dated 30.08.2016, and that it is a trite law that the hearing of a suit is deemed to have commenced on and from the date when issues are framed for trial, as such, the petition for amendment at the stage of examination and cross examination of plaintiff's witnesses is not only belated but it is an abuse of the process of law. It is submitted that the only plea taken in the petition for amendment was that there was an inadvertent typing error, but no attempt was made to show that the petitioners had exercised due diligence, and there is no explanation why the prayer for amendment could not be made before commencement of trial. In this connection, the learned advocate has relied on the Law Commission Report contained in Vol. 3 (15th to 29th Report), Vol. 6 (43rd to 59th Report) and Vol. 14 (157th to 176th Report), and the Reasons and Object for introducing CPC Amendment Bill, 1997 to canvass the point that the legislative intention for amending the provisions of Order VI Rule 17 CPC was to curtail delay and to ensure that one who sleeps over his right without exercising due diligence should not be allowed to amend the plaint at the belated stage of the trial, i.e. after the trial has commenced. In this connection, it is further submitted that in this case, along with the consolidated written statement filed in June, 2016 the respondents had not only disclosed the Dag No. and Patta No. of the suit land, but they had also annexed a copy of jamabandi, which contained correct revenue description of the suit land. Therefore, this is not a case where the petitioners had exercised due diligence at all. 7. It is also submitted that the relief of declaration must be claimed within three years from the date when the cause of action for the suit had arisen. Therefore, if the revenue description of suit land is allowed to be amended, it would introduce a claim which would otherwise be barred by limitation. It is also submitted that in the present application, the petitioners has neither elaborately described that the plaint was previously amended and that the petitioners have not produced the copy of order allowing amendment, and moreover, the copy of written statement filed by the respondents has also not been annexed, which according to the learned advocate for the respondents, amounted to withholding of facts from this Court. In support of his submissions, the learned advocate for the respondents have relied on the following cases:- a. L.C. Hanumanthappa (Dead by LRs) Vs. K.B. Shivakumar, (2016) 1 SCC 332 . b. J. Samuel & Ors. (supra). c. Meghmala & Ors. Vs. G. Narasimha Reddy & Ors., (2010) 8 SCC 383 . d. Tajkumar Gurwara (Dead) by L.Rs. Vs. S.K. Sarawgi & Co. Pvt. Ltd. & Anr., (2008) 14 SCC 364 . e. Ajendraprasadji N. Pandey & Anr. Vs. Swami Keshavprakashdasji N. & Ors., (2006) 12 SCC 1 . f. Kale & Ors. Vs. Deputy Director of Consolidation & Ors., (1976) 3 SCC 119 . g. Rezia Begum & Ors. Vs. Nazim Bano Ahmed & Anr., 2017 (4) GLT 822. h. Muhaeddin (Md.) Vs. Prakash Tewari, 2017 (1) GLT 423. i. Durgeswar Bordoloi Vs. Trishnagaon Khowa & Anr., 2013 (1) GLT 296. 8. It is seen that in this present case in hand, that the plaint is sought to be amended for the second time. In paragraph 1 of the plaint, the petitioner has described the suit land by making reference to Dag No. 231 (New). However, in paragraph 1 of the plaint, the Patta number is mentioned as "Patta No. 185(O)/14 (N). It is seen that in this present case in hand, that the plaint is sought to be amended for the second time. In paragraph 1 of the plaint, the petitioner has described the suit land by making reference to Dag No. 231 (New). However, in paragraph 1 of the plaint, the Patta number is mentioned as "Patta No. 185(O)/14 (N). By the second prayer for amendment, the plaint is sought to be amended as follows, (a) in 11th line of paragraph 4 of the plaint, in place of Dag No. 241, Dag No. 231 is sought to be inserted, (b) in Schedule-A of the plaint, Patta No. 467 (New) is sought to be inserted with Patta No. 14 (Old). Thus, the nature of amendment is to rectify the description of the suit land. 9. In this regard, one of the plea raised by the learned advocate for the petitioner is that if the plaint is amended, it will introduce a new cause of action, which would be barred by limitation. In support of his submissions, he had placed reliance on the provisions of Article of the Schedule to the Limitation Act, 1963 prescribing, inter-alia, period of three year's limitation for seeking relief of declaration. This argument is also supported by the case of L.C. Humanthappa (supra). In this connection, as the petitioner had provided Dag and Patta number in the plaint, but while the Dag number was correctly written in paragraph-1 of the plaint, it was incorrectly typed out in Schedule appended to the plaint. Thus, this is not a case where a new prayer is being made after the period of limitation prescribed, as such, in the opinion of this Court, the prayer for amendment cannot be refused only on the ground of delay in making such a prayer. 10. By relying on the case of J. Samuel (supra), it is the further submission of the learned advocate for the respondents that not only the petitioner was required to show "exercise of due diligence", but correct description of Dag and Patta number of the suit land, being an essential pleading in the plaint, if incorrectly described, cannot be cured on the plea that it was typing error. In this connection, it is seen that in the case of J. Samuel (supra), the suit was for specific performance of contract and in the said context, it was held that the plea that "the plaintiff was ready and willing to perform his part of the contract is essential under Section 16(c) of the Specific Relief Act, 1963 and Appendix-A, Form 47 to maintain a suit, the lack of which cannot be regarded as a "typing error". Thus, on facts, the present case is distinguishable. 11. The case of Durgeswar Bordoloi (supra) was relied to canvass the point that "hearing of the suit" would commence on and from the pre-emptory hearing for the purpose of framing of issues, which is "first hearing of the suit" and that in a civil suit trial begins when issues are framed and the case is set down for recording of evidence. It appears that the said case related to dismissal of the suit upon rejection of the prayer for adjournment, as such, this Court was examining the facts of the said case with reference to the provisions of Order XVII Rule 2 and 3(b) and Order IX Rule 9 CPC. However, the Hon'ble Supreme Court of India, while examining the question relating to "commencement of trial as used in proviso to Order VI Rule 17 CPC", has held in the case of Kumari Varma Vs. State of Kerala & Ors., (2006) 6 SCC 505 , that "commencement of trial as used in proviso to Order VI Rule 17 CPC" must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. In the said case, the parties were yet to file their documents, hence, amendment was allowed. Therefore, it appears that "commencement of hearing" can be interpreted differently for different purposes and provisions of CPC. 12. In the said case, the parties were yet to file their documents, hence, amendment was allowed. Therefore, it appears that "commencement of hearing" can be interpreted differently for different purposes and provisions of CPC. 12. In the case of Rajkumar Gurawara (supra), on which the learned advocate for the respondents had relied, the essence of the case was that in reply notice, the State Government had discarded the assertions made by the plaintiff regarding his exclusive right over the leased mine (suit property) on the ground that it had been leased out to defendant No. 2, who impleaded himself in the suit later and after commencement of trial, the plaintiff wanted to amend the plaint, which was allowed, and reversed by High Court and the rejection of amendment was upheld by the Hon'ble Supreme Court for the reason that the facts sought to be introduced by amendment existed prior to filing of the suit. On the said facts, the Hon'ble Supreme Court of India had held that it was a settled law that the grant of amendment shall be subject to certain conditions, namely, (i) when the nature of suit is changed by permitting amendment, (ii) when the amendment would introduce a new cause of action and intends to prejudice the other party, and (iii) when allowing amendment application defeats the law of limitation. Again on the lack of due diligence, the learned Advocate for the respondents had relied on the case of Muhaeddin (Md.) (supra) and Rezia Begum (supra). In the present case in hand, it is seen that the three essentials, as mandated by the case of Rajkumar Gurawara (supra) are not present. Even in the case of Ajendrapradji N. Pandey (supra), the facts sought to be amended were in their knowledge. In this context, it would be appropriate to refer to the case of Pratibha Singh Vs. Shanti Devi Prasad, (2003) 2 SCC 330 , where the Hon'ble Supreme Court of India had held by referring to the provisions of Order VII Rule 3 CPC that if there is an omission in plaint regarding description of the suit property, the trial court is obliged, while scrutinizing the plaint, to point out the omission and insist on its rectification. Thus, it is seen that mis-description of suit property in the plaint was viewed differently than where new facts were sought to be introduced after the commencement of trial, notwithstanding that correct description of land was also within the knowledge of the plaintiff. 13. By referring to the fact that the previous amendment was not effectively pleaded by the petitioner amounted to fraud upon the Court and abuse of the process of Court/law. In this connection, the learned advocate for the respondent had relied on the case of Meghmala & Ors. (supra). In this connection, it is seen that in paragraph 3 of this application, the petitioner has mentioned as follows:- "It is pertinent to mention herein that earlier the petitioners/plaintiffs amended their plaint for insertion of certain relevant/necessary facts." In the said context, it is seen that no material has been placed before this Court that second prayer for amendment was barred by any law in force or that the nature of first amendment allowed, would have any bearing on the second prayer for amendment. Therefore, in the opinion of this Court, if the nature of amendment allowed earlier is not relevant for the purpose of the prayer for amendment of plaint made for the second time, the short description about previous amendment being allowed cannot be equated to perpetration/commission of fraud or an abuse of the process of Court/law. It is seen that save and except the requirement of establishing exercise of due diligence, the Hon'ble Supreme Court of India has held in the case of Baldev Singh Vs. Manohar, (2006) 6 SCC 498 , that Courts should be "extremely liberal" in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side. Further, in the case of Manila Ramkali Devi Vs. Nandram (Dead) through L.Rs. & Ors., (2015) 13 SCC 132 : (2015) 0 Supreme (SC) 438, the Hon'ble Supreme Court of India has held that amendment should be allowed unless mala fide or if by blunder the plaintiff caused injury to the opponent which cannot be compensated for by an order of cost, High Court ought not to have rejected the prayer for amendment. Paragraph 20 thereof [extracted from (2015) 0 Supreme (SC) 438] is reproduced below:- "20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. Paragraph 20 thereof [extracted from (2015) 0 Supreme (SC) 438] is reproduced below:- "20. It is well settled that rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of rules of procedure. The Court always gives relief to amend the pleading of the party, unless it is satisfied that the party applying was acting mala fide or that by his blunder he had caused injury to his opponent which cannot be compensated for by an order of cost." 14. Therefore, in view of the discussions above, this Court is of the considered opinion that the learned trial Court had committed jurisdictional error in not permitting the prayer for amendment of plaint to correct the mis-description of property. Thus, the impugned order dated 30.01.2018 passed by the learned Munsiff, Kamrup (Rural), Amingaon in Misc. (J) Case No. 14/2017 arising out of T.S. No. 390/2014, thereby rejecting the prayer for amendment of the plaint, is set aside. Resultantly, by following the ratio laid down by the Hon'ble Supreme Court of India in the case of Pratibha Singh(supra), the prayer for amendment made by the petitioner vide Misc. (J) Case No. 14/2007 stands allowed. However, for causing the delay in the trial, the respondent is entitled to be compensated with a cost of Rs. 10,000/-, which is to be deposited by the petitioner before the learned trial Court on the next date fixed for appearance for onward payment to the respondents. The said cost is made a condition precedent for allowing the proposed amendment It is made clear that if such cost is not deposited, this order for allowing amendment would stand revoked. 15. The parties herein, who are duly represented by their learned advocates, shall appear before the learned Court of Munsiff, Kamrup (R), Amingaon on 28.01.2019 without any further notice of appearance, and if for any reason, the said date is a non-working day, then on the next working day, and the petitioners shall produce the certified copy of this order and by depositing cost, shall seek further instructions from the said learned Court.