Research › Search › Judgment

Calcutta High Court · body

2019 DIGILAW 499 (CAL)

Kalpana Roy v. Arup Kumar Sen

2019-04-17

SUBHASIS DASGUPTA

body2019
JUDGMENT : 1. The impugned order No 57 dated 21.06.2018 passed by the learned 5th Judge, Small Causes Court, Calcutta in Ejectment Suit No. 313 of 2013 allowing the amendment under Order 6 Rule 17 read with Section 151 CPC with a cost of Rs.1000/- to be paid by defendants to plaintiff is the subject matter of challenge in this revisional application under Section 227 of the Constitution of India. 2. Admittedly in the year 2013, petitioner/plaintiff filed a suit for ejectment taking grounds of reasonable requirement and others. The opposite parties/defendants entered appearance in such ejectment suit long before and chose to contest the suit by filing written statement. 3. All on a sudden, the defendants/opposite parties filed petition praying for amendment, in their written statement. The ground taken was that the landlord/plaintiff/petitioner had constructed a floor over the existing three (3) storied building, and such fact was attempted to put in the written statement filed by the defendants/opposite parties. 4. Learned advocate for the revisionist submitted that there could not be any amendment of the pleadings after the trial had already commenced. According to petitioner, the Trial Court was in midst of collecting evidence of plaintiff/PW1 pursuant to his affidavit in chief being filed under Order 18 Rule 4 CPC. The basis of proposing amendment was highly surprising as the defendants/opposite parties sought for amendment from the averments contained in the written objection filed by plaintiff/petitioner, in connection with an application under Order 39 Rule 1 and 2, filed by the defendants/opposite parties. Since there was unexplained delay while proposing for amendment, the proviso appended to Order 6 Rule 17 even could not be attracted to, learned advocate for the petitioner argued. 5. Learned advocate for the opposite parties/defendants repelling the contention raised by the petitioner/plaintiff most ardently submitted that sufficient explanation had already been offered in the petition filed by defendants/opposite parties while proposing for amendment stating therein, that sanction plan was obtained on 15.09.2017 in order to construct a floor over the existing three (3) storied building, and such disclosure was made by plaintiff/landlord himself in connection with his written objection filed in response to a petition under Order 39 Rules 1 and 2 CPC filed by defendants/opposite parties. So, according to opposite parties unless the defendants were made to know about the proposed construction with sufficient documents, it cannot be concluded saying that the defendants failed to exercise his due diligence in proposing for amendment at appropriate point of time. 6. It was also submitted that since the plaintiff sought for eviction against the defendants taking grounds of reasonable requirement with others, the proposed amendment would facilitate defendants/opposite parties in putting up effective defence against the petitioner/landlord seeking eviction. 7. It is a trite law that the prayer for amendment is not entertain able after the trial has commenced. The purpose of amendment is necessarily for determination of the real question in controversy between the parties. 8. The prayer for amendment sometimes becomes necessary in order to avoid multiplicity of judicial proceedings subject to certain conditions, such as it should not result in injustice to the other side depending on the facts and circumstances of a particular case. The words used in the proviso appended to Order 6 Rule 17 manifestly makes it abundantly clear that amendment can be effected at any stage of the proceeding, unless Court comes to the conclusion that in spite of due diligence, the party could not have raised matter before the commencement of the trial. 9. Undenying position is that a suit for eviction was filed sometimes in 2013. The written statement was, therefore, supposed to be filed with the period provided under the Code of Civil Procedure, soon after receipt of the summons by the defendants, issued after the institution of the suit. The moment when the written statement was filed, the floor over the existing three (3) storied building even could not be thought of. The building plan for undertaking construction of floor over the existing three (3) storied building of the suit house was obtained on 15.09.2017 from Kolkata Municipal Corporation. When the issue was framed, or when the affidavit in chief was filed by plaintiff/petitioner under Order 18 Rule 4 CPC, the opposite parties/defendants might not have had their sufficient knowledge about the new construction of a floor over the existing three (3) storied building. Therefore, it was not the situation that in spite of due diligence, the defendants proposing for amendment could not have raised the matter before the commencement of the trial. 10. Therefore, it was not the situation that in spite of due diligence, the defendants proposing for amendment could not have raised the matter before the commencement of the trial. 10. Shelter accordingly may be taken to a decision, as referred by learned advocate for the opposite parties, rendered in the case of State of Bihar and Ors. vs. Modern Tent House and Anr., (2017) 8 SCC 567 wherein and whereunder the amendment of the written statement was even allowed after the evidence of plaintiff was over. 11. It would be profitable here to refer the relevant text of paragraph of such decision, which may be mentioned as hereunder: "8. We have perused the amendment application filed by the appellants. We find that firstly, the proposed amendment is on facts and the appellants in substance seek to elaborate the facts originally pleaded in the written statement; secondly and in other words, it is in the nature of amplification of the defence already taken; thirdly, it does not introduce any new defence compared to what has originally been pleaded in the written statement; fourthly, if allowed, it would neither result in changing the defence already taken nor will result in withdrawing any kind of admission, if made in the written statement; fifthly, there is no prejudice to the plaintiffs, if such amendment is allowed because notwithstanding the defence or/and the proposed amendment, the initial burden to prove the case continues to remain on the plaintiffs; and lastly, since the trial is not yet completed, it is in the interest of justice that the proposed amendment of the defendants should have been allowed by the courts below rather than to allow the defendants to raise such plea at the appellate stage, if occasion so arises. 12. Amendment to written statement is not always considered applying the same principle as applicable to amendment to the plaint. It is for the Court, while allowing amendment must necessarily considere whether the pleas sought to be put in by way of amendment in the written statement, was on alternative or additional ground or to substitute their original plea. 12. Amendment to written statement is not always considered applying the same principle as applicable to amendment to the plaint. It is for the Court, while allowing amendment must necessarily considere whether the pleas sought to be put in by way of amendment in the written statement, was on alternative or additional ground or to substitute their original plea. Upon applying the principle as propounded by the Apex Court in the case of State of Bihar and Ors (supra), it appears that the proposed amendment would simply tend to elaborate the ground of defence pertaining to reasonable requirement taken in support of the defence, already pleaded in the written statement providing necessary amplification of the defence already put up in the written statement. It was not intended to introduce any new defence. It will also not result in changing and/or converting to defence, not already taken, and further by reason of the proposed amendment, the admission already made in the written statement, would stand withdrawn, if at all made in the written statement. Since the proposed amendment, if allowed, the plaintiff seeking eviction would be necessarily provided with an opportunity of cross-examining the witnesses in support of the proposed amendment, and therefore, there would be no prejudice occasioned to plaintiff/petitioner. As has already discussed that the Trial Court is in the midst of collecting evidence of plaintiff/PW 1, and his evidence has not yet concluded, so the proposed amendment will not disturb very framework of the suit. 13. From the order impugned, it appears that the Court below allowed the amendment subject to payment of cost of Rs.1000/- to be paid by the defendants to the plaintiff as a condition prerequisite. 14. The essential prerequisite is that the delay in making the application for amendment, if there be any, the reason therefor, should be explained and considered, and there should not be any prejudice caused to the other side. The delay caused in taking out the proposed amendment may, however, be compensated to other side in terms of the money. 14. The essential prerequisite is that the delay in making the application for amendment, if there be any, the reason therefor, should be explained and considered, and there should not be any prejudice caused to the other side. The delay caused in taking out the proposed amendment may, however, be compensated to other side in terms of the money. The application proposing amendment in written statement could not be filed soon after steps were taken for raising construction on the roof of the third floor after the sanction plan was obtained and this aspect needs to be taken care of appropriately by compensating the same to plaintiff in terms of money, so that no prejudice is caused to the plaintiff/petitioner seeking eviction. 15. The impugned order thus needs little modification to the extent as mentioned hereinbelow: 16. The order dated 21.06.2018 passed by the learned 5th Judge, Small Causes Court, Calcutta in Ejectment Suit No. 313 of 2013 allowing the amendment of the written statement in terms of the prayer of the defendants/opposite parties with a cost of Rs.1000/- be modified to Rs.10,000/- as cost, instead of Rs.1000/-, to be paid by the opposite parties/defendants to the plaintiff as a condition prerequisite within one month from the date of communication of this order to the Court below. The other portion of the order while allowing amendment of written statement shall remain unchanged. 17. The petitioner is directed to make necessary communication of this order to the Court below. 18. With this observation and direction the revisional application stands disposed of. 19. Urgent certified copy of this order, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.