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2019 DIGILAW 663 (JHR)

Panpati Devi v. Ram Barat Ram

2019-03-07

SUJIT NARAYAN PRASAD

body2019
ORDER : 1. This writ petition is filed under Article 227 of the Constitution of India, whereby and whereunder, the order dated 08.02.2018 passed in Title Appeal No.01 of 2010 is under challenge by which petition dated 29.01.2018 has filed under the provision of Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, has been rejected. 2. The brief facts of the case is that a title suit had been filed on 03.01.2002 being Title Suit No.3 of 2002 for grant of a decree of declaration that the sale deed dated 12.11.1999 executed in favour of the petitioner no.1 in respect of the suit land is invalid, illegal and fraudulent. The aforesaid title suit has finally been decided by virtue of the judgment and decree dated 30.11.2009 passed by the Munsif, Palamau holding inter-alia therein that the sale deed was obtained by fraudulent method to pay the considered money. 3. The petitioners being aggrieved and dissatisfied with the judgment passed in the Title Suit No.3 of 2002, preferred an appeal before the learned District Judge, Palamau, being Title Appeal No.1 of 2010. On 29.01.2018 the petitioners have filed a petition under the provision of Order VI Rule 17 read with Section 151 of the Code of Civil Procedure with a prayer for amendment by incorporating new Para-17(Ka) in their written statement to the effect that the defendant No.1 purchased the premises measuring an area of 22 ½ decimals from the plaintiff No.4 vide registered sale deed dated 12.11.1999 and after purchase, she has been in possession thereof and that the provision of Section 46 of the Chhotanagpur Tenancy Act, is not applicable in the Chhapparbandi land. A rejoinder to the aforesaid petition was filed by the respondent/defendant opposing the prayer for amendment, stating therein that there was no plea that the sale deed covers land with the residential house, the appellate court has rejected the petition dated 29.01.2018 on the ground that the nature of amendment as sought for, it is not relevant for the purpose of adjudication of the appeal as a sale deed in question was under challenge and such challenge was within the knowledge of the defendant/petitioners against the aforesaid order, the present writ petition has been filed and invoking the jurisdiction conferred to this Court under Article 227 of the Constitution of India. 4. 4. Learned counsel for the petitioner has argued out the case by taking the ground that the amendment as sought for, is just and proper for the proper adjudication of the issue and the same may be allowed at any stage but without appreciating this aspect of the matter the appellate court has rejected the same, hence the impugned order suffers from patent illegality, he has relied upon the judgment passed by this Court in the case of Most. Dilwa Kuer & Ors. Vrs. Mahipat Singh & Ors. reported in (2008) 2 JCR 529 (Jhr), Corporation of City of Bangalore Vrs. Zulekha Bi & Ors. reported in (2008) 3 JCR 32 (SC), Surendra Kumar Sharma Vrs.Makhan Singh, reported in (2010)1 JCR 5 (SC) and Julekha Khatoon & Ors. Vrs. S. Motin Ahmad & Ors., reported in (2010) 2 JCR 392 (Jhr). 5. Having heard the learned counsel for the petitioner and on appreciation of their rival submissions it is evident from the material available on record that the pleading made in the writ petition as well as finding/reasoning assigned by the trial court, thinks it proper and looking into the scope of provision of Order VI Rule 17 of the Code of Civil Procedure, the same needs to be referred herein-below : 17. Amendment of pleadings.- 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: Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. It is evident from the provision as contained under Order VI Rule 17 that the conditions of amendment is as follows:- (I) When the nature it is not changed; (II) When the amendment would result in introducing a new cause of action and intends to prejudice the other party; (III) When defeats the law, if fresh suit of amendment of plaint would be barred then as a general rule would be rejected but to avoid multiplicity it can be allowed reference in this regard be made to the judgment rendered by this Court in the case of Rajkumar Gurawara (Dead) Through LRS. Vrs. S.K. Sarwagi & Company Private Limited and Anr. reported in (2008) 14 SCC 364 , and in the case of Revajeetu Builders and Developers Vrs. Narayanaswamy and Sons & Ors. reported in (2009)10 SCC 84 . It is further settled proposition of law that a pre-trial amendment is to be allowed as the opposite party would not be prejudiced because he will have an opportunity of making the amendment reference in this regard be made to the judgment rendered in the case of Rajkumar Gurawara (Dead) Thr. L. Rs. Vrs. M/s. S.K. Sarwagi and Co. Pvt.Ltd and Anr. reported in AIR (2008) SC 2303, after amendment in the Code of Civil Procedure w.e.f. 01.07.2002 a new provision has been added to the rule namely no application for amendment of the pleading shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter, reference in this regard be made to the judgment rendered in the case of Sumesh Singh Vrs. Phoolan Devi & Ors. reported in (2009)12 SCC 689 and in the case of Abdul Rehman & Anr. Vrs. Mohd. Ruldu & Ors. reported in (2012)11 SCC 341 , it is also equally settled that mere delay is no ground that dismissal of an amendment but if it is hopelessly delayed. Phoolan Devi & Ors. reported in (2009)12 SCC 689 and in the case of Abdul Rehman & Anr. Vrs. Mohd. Ruldu & Ors. reported in (2012)11 SCC 341 , it is also equally settled that mere delay is no ground that dismissal of an amendment but if it is hopelessly delayed. It is to be rejected in the backdrop of this legal position and the authoritative pronouncement the factual aspect involved in the case has been examined by this Court where from it is evident that a suit was filed by the respondents/plaintiffs being Title Suit No.3 of 2002 interalia for grant the decree of declaration, a sale deed dated 12.11.1999 executed in favour of the petitioner no.1 in respect of the suit land is invalid, illegal and fraudulent. 6. The petitioners/defendants/appellant had appeared before the trial court and filed written statement and on contest judgment and decree was passed on 30.11.2009 holding therein that the sale deed was obtained by fraudulent method without paying the consideration money against which appeal has been preferred by the defendant/appellant being Title Appeal No.01 of 2010 and after lapse of about eight years a petition under the provision of Order VI Rule 17 read with Section 151 of the Code of Civil Procedure, has been filed seeking there leave of the court to allow the prayer for amendment by incorporating the new para-17(Ka) in the written statement to the effect that the defendant No.1 purchased the premises measuring an area of 22 ½ decimals from the plaintiff No.4 vide registered sale deed dated 12.11.1999 and after purchased she has been in possession thereof and that the provision of Section 46 of the Chhotanagpur Tenancy Act, is not applicable in the Chhapparbandi land. A rejoinder to that effect has been filed by the respondents/plaintiffs and opposing the prayer for amendment containing therein that there was no plea that the sale deed covers the land with residential house. 7. The appellate court after appreciating the argument advanced on behalf of the parties and looking to the contents of the petition as also the rejoinder, has passed order rejecting the amendment vide order dated 08.02.2018 which is impugned in this writ petition. 7. The appellate court after appreciating the argument advanced on behalf of the parties and looking to the contents of the petition as also the rejoinder, has passed order rejecting the amendment vide order dated 08.02.2018 which is impugned in this writ petition. The trial court has assigned the reason while rejecting the same amendment by assigning the reason that in the Paragraph-15 of the plaint, statement has been made that the house of the plaintiffs is in Khesra Nos.407 and 408 which was being used as Gharbari and Paragraph-28 the statement has been made that the sellers are the scheduled caste and the provision of Section 46 of the Chhotanagpur Tenancy Act, no permission has been obtained by the Deputy Commissioner as such no court recognize the provision of Section 46(3) of the Chhotanagpur Tenancy Act, and on the basis of said pleading made in the plaint, before the trial court, the decree was passed on the basis of the registered deed of sale in which no right of the defendant was found and as such the amendment sought for, is not as such a nature which is necessary for proper adjudication of the issue since the sale deed itself has been questioned and the defendants were knowing about the fact and as such does not come under the fold of the Order VI Rule 17 and accordingly the amendment petition has been rejected. 8. 8. This Court after looking into the finding of the trial court, the trial court has found insisted upon the reason to the fact which has sought to have been amended, was within the knowledge of the petitioner since the reference of the applicability of Section 46 has been raised on the ground that the land in Chhapparbandi land and if the nature of land is Chhapparband having therein, the Ghar Bari the said fact is known to the petitioner at the time of filing the written statement but he has not taken this point therein, therefore, the fact about showing the due diligence is lacking since after amendment in the C.P.C. no application for amendment of the pleading shall be allowed after the trial has commenced unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter but no such assertion has been made in this regard by the petitioners and therefore the amendment having not been allowed and cannot be said to suffer from infirmity, furthermore there is no reason to give contrary to the finding as has been stipulated by the trial court in the impugned order that the said amendment is not relevant for the purpose of the appropriate adjudication of the issue, since the validity of the sale deed itself has been questioned. There is no dispute about the proposition of law that the provision under Article 227 of the Constitution of India is to be exercised if there is error apparent on the face of record as would be evident which is being quoted herein-below : It needs to refer herein the scope of Article 227 of the Constitution of India making reference to the judgment rendered by the Hon’ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon’ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court’s discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court’s power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. The power of superintendence is not to be exercised unless there has been; 1. An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or 2. gross abuse of jurisdiction; or 3. an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. Further, in the aforesaid judgment the Hon’ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 , wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. The Hon’ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 , it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Further, the judgment rendered by the Hon’ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 , it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appealable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. The petitioner has relied upon the Judgment passed by this Court in the case Julekha Khatoon (supra),it is evident from the factual aspect involved therein that the amendment has been sought for has been allowed, which was challenged before this Court but the same has been refused to be interfered with for the reason first that the same was allowed in course of the trial and the factual aspect involved in the aforesaid case is totally to be different to that of the this instant case herein the sale deed is under challenge and the amendment sought for was within the knowledge of the petitioner but has not been brought on record, therefore, in the facts and circumstance of the case in hand the aforesaid judgment is not applicable. So far as the judgment rendered in the case of Most. Dilwa Kuer & Ors. So far as the judgment rendered in the case of Most. Dilwa Kuer & Ors. (supra), it is evident on examination of the factual aspect involved there that the said case pertains, allowing to the amendment by the appellate court, since amendment sought for will not change the nature and character of the case and is necessary for proper adjudication of the controversy, since the controversy revolves found in the aforesaid case is that the plaintiffs were not pleaded that they are governed by the customary law rather only pleading is that the petitioners are by caste Chero, as a matter of fact defendant’s case was that the plaintiffs are by caste chero and are governed by customary law before the trial court sufficient evidence come from the mouth of the witnesses although they are by caste Chero but they performed and celebrate all Hindu festivals, in the amendment petition, it was categorically stated by the plaintiffs/petitioners that no further evidence is to be adduced as because the evidence is already on record and keeping this factual aspect into the consideration the appellate court has allowed the amendment on the factual aspect involved in the said case but the factual aspect of this case is totally different since there is no evidence to the effect about having Ghar-Bari and even accepting that it will not be relevant for the adjudication of the issue since the sale deed itself has been questioned. The Judgment relied rendered in the case of Puran Ram (supra), wherein the Hon’ble Apex Court has been pleased to be laid down that the amendment could not be refused on the technical ground but herein the instant case the amendment has not been rejected on technical ground rather on its merit. The Judgment relied rendered in the case of Puran Ram (supra), wherein the Hon’ble Apex Court has been pleased to be laid down that the amendment could not be refused on the technical ground but herein the instant case the amendment has not been rejected on technical ground rather on its merit. Judgment rendered in the case of Surendra Kumar Sharma (supra), the amendment having been declared to interfere with this for the reason that the amendment of plaint has been found to be not changing the nature and character of the suit since the suit is for the eviction and even if it will be allowed the real controvercy between the parties is not going to be changed, therefore, on delay and laches the amendment should not be disallowed but herein the facts and circumstances of the case that an amendment has not been disallowed on delay rather on two grounds i.e. due diligence has not been shown and the amendment sought for is not relevant for the purpose of proper adjudication of the issues, therefore, the judgment is not applicable in the facts and circumstances of the instant case. 9. In view thereof and in entirety of the facts and circumstances of the case and looking to the scope of Article 227 of the Constitution of India as also the reasoning assigned by the trial court while rejecting the amendment application filed under the provision of Order VI Rule 17, according to the considered view of this Court as per the reason assigned hereinabove the same is not fit to be entertained with, accordingly this Court refrains itself from exercising the jurisdiction conferred under Article 227 of the Constitution of India in interfering with the impugned order. 10. In consequence thereof this writ petition lacks merit, fails and is dismissed. Petition dismissed.