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2019 DIGILAW 90 (CAL)

P. Sivan v. P. Shantha

2019-01-17

SHAMPA SARKAR

body2019
JUDGMENT : Shampa Sarkar, J. This revisional application has been filed against the order dated October 11, 2018 passed by the learned Joint Civil Judge, Senior Division at Port Blair in Title Suit No. 27 of 2015 by which the learned court below allowed the application under Order 6 Rule 17 of the Code of Civil Procedure, 1908 filed by the opposite party No. 1 i.e. plaintiff No. 2 in the said suit, for amendment of the plaint. 2. The fact of the case is that the opposite parties filed a suit for partition which was registered as Title Suit No. 28 of 2010 and subsequently renumbered as Title Suit No. 17 of 2015 against the petitioners in the court of the learned Civil Judge, Senior Division at Port Blair. According to them, the plaintiff Nos. 1 to 6 were the daughters of late D. Prakasan and the defendant No. 1, 2, 3 were the first wife, son and other daughter of late D. Prakasan respectively from his first wife P. Radha the defendant No. 1. The proforma defendant was also a son of the deceased but has not contested the proceedings. That late D. Prakasan was the tenant with regard to land bearing survey No. 61/1, 61/2, 62, 63, 64, 112 and 199 measuring an area of 0.0557 hects, 0.0543 hects, 0.05 hects, 0.04 hects, 0.09 hects, 0.07 hects and 0.02 hectares situated at Burmanallah, Bimbilitan village under Port Blair Tehsil, South Andaman District. 3. It was stated in the plaint that the deceased married one Smt. Leela in 1957 and had six daughters and one son out of the said matrimonial tie. That Late D. Prakasan was a settler in respect of the land stated hereinabove. That the landed property was mutated in favour of the plaintiffs and defendants. That the plaintiffs came to know that the petitioner No. 1/defendant No. 2 was giving the landed property to one Ramachandran on lease without partition of the property and such action of the petitioner No. 1 was going to affect the right, title and interest of the plaintiffs. The entire property of the original settler D. Prakasan described in the schedule of the plaint should be divided amongst his heirs namely, the plaintiffs and the defendants in terms of the Hindu Law of Succession. The entire property of the original settler D. Prakasan described in the schedule of the plaint should be divided amongst his heirs namely, the plaintiffs and the defendants in terms of the Hindu Law of Succession. That the original settler constructed a dwelling house over the property during his life time and the defendants and the plaintiffs used to reside together. The plaintiff Nos. 1, 4 and 6 were residing outside after marriage. The plaintiff Nos. 2, 3 and 5 were residing in the landed property without knowing their actual share. That after the death of D. Prakasan dispute arose when the petitioner No. 1 also started some construction over the property without first partitioning the property. The petitioner No. 1 refused to partition the property among the heirs of the deceased. That as per the Hindu Law, the share of the deceased with regard to the schedule property should be divided equally amongst the legal heirs. 4. The plaintiffs prayed for the following reliefs:- a. A preliminary decree for declaration and partition of the shares of the parties to the instant suit in respect of the suit property and to declare the plaintiff share which is available in Survey No. 61/1, 61/2, 62, 63, 64, 112 and 199 measuring an area of 0.0557 hects, 0.0543 hects, 0.05 hects, 0.04 hects, 0.09 hects, 0.07 hects and 0.02 hectares situated at Burmanallah, Bimblitan village under Port Blair Tehsil, South Andaman District. b. Appointment of Commissioner for effecting and partition in terms of the preliminary decree and allocation thereof in severally to the parties, as described in schedule according to the respective shares of the parties. c. Final decree for partition allocation in severally to the parties to the suit instant suit divided, demarcated and separated portions of the suit property as shall be determined by the Commissioner of partition. d. Khas possession of the Plaintiffs shares in the suit property. e. Receiver. f. Injunction g. Attachment before judgment. h. Interim order i. Costs j. Such other of further reliefs or reliefs. 5. The defendants/petitioners contested the suit by filing their written statement. They denied the allegations in the plaint and stated that the plaintiffs were trying to deny the share of the defendants. In the written statement it was stated that the defendant No. 1/petitioner No.2 was the legally wedded wife of the deceased. 5. The defendants/petitioners contested the suit by filing their written statement. They denied the allegations in the plaint and stated that the plaintiffs were trying to deny the share of the defendants. In the written statement it was stated that the defendant No. 1/petitioner No.2 was the legally wedded wife of the deceased. The mother of plaintiffs was not a wife in the eye of law and the petitioners Nos. 1 and 3 were the son and daughter of the original settler from the legally wedded wife Radha, petitioner No. 2. Due to objections raised by the plaintiffs the land could not be mutated in the name of the petitioner No. 2. That the petitioner No. 1 was residing in the house which was in a dilapidated condition and as such the petitioner No. 1 was constructing a residential house and the petitioners did not ever deny the share of the plaintiffs/opposite parties. On the contrary, the suit had been filed only to stall the construction of the house by the petitioner No. 1. That the petitioners did not have any objection to effect mutual partition of the suit property and the petitioners had never deprived the opposite parties from their share over the suit property. 6. That the suit proceeded and issues were framed and evidence was being adduced by the plaintiffs. The plaintiffs have produced three witnesses and filed their examinations-in-chief. The cross-examination of PW 1 and PW 2 were completed as is evident from the annexures to the affidavit-in-opposition filed by the plaintiff No. 2/opposite party No. 1. That the opposite party No. 1 has also filed the examination-in-chief as PW 3 but has not yet been cross-examined. 7. At this stage, the opposite party No. 1 filed an application in her individual capacity under Order 6 Rule 17 of the Code of Civil Procedure and sought amendment of the plaint. It was stated in the application that the opposite party No. 1 while cleaning her house got a document which was a deed of gift by which her father had gifted one hectare of land in the suit property and the said land was in her possession and she used to give the same on lease from time to time to outsiders. According to the opposite party No. 1, inadvertently that fact was not mentioned in the plaint and the said property was not included in the schedule of the plaint. 8. The relevant paragraph of the application is quoted below:- "7. That the plaintiff no.2 recently while cleaning her house got her documents pertaining to agreement of gift, wherein her father gifted 1.00 Hectares of land to her and more the landed suit property an area of 1.00 Hectares of land was in her possession since last three decades and from time to time she used to give on lease after executing agreement from the intended lessee. 8. That the plaintiff No. 2 state that inadvertently at the time of filling of case the above mention facts were not mention in the plaint and as such the plaintiff No. 2 intend to include the above mention facts in the plaint as well as in the schedule of the property. 9. That the plaintiff No.2 intends to include the fact regarding gift of property of 1.00 Hectares to her by her deceased father Late. D. Praksan and further plaintiff No.2 intends to bring all documents pertaining to gift and other documents before this Hon’ble Court to proof her claim and the plaintiffs are state that the correction is only general in nature it will not change the nature and character of the suit." 9. The opposite party No. 1 prayed for the following amendment:- "11. That the plaintiff No. 2 intend to do the following amended in the plaint: (I) That the plaintiff no. 2 recently while cleaning her house got her documents pertaining to agreement of gift, wherein her father gifted 1.00 Hectares of land to her and more the landed suit property an area of 1.00 Hectares of land was in her possession since last three decades and from time to time she used to give on lease after executing agreement from the intended lessee (Para 34). (II) A preliminary decree for declaration and partition of share of plaintiff no. 2, measuring an area of 1.00 Hectares of Land bearing Survey No. 61/1, 61/2, 62, 63, 64, 112 and 199 measuring an area of 0.0557 hects, 0.0543 hects, 0.05 hects, 0.04 hects, 0.09 hects, 0.07 hects and 0.02 hects situated at Burmanallah, Bimblitan Village under Port Blair Tehsil, South Andaman District. (PARA 36AA, PRAYER SECTION)." 10. 2, measuring an area of 1.00 Hectares of Land bearing Survey No. 61/1, 61/2, 62, 63, 64, 112 and 199 measuring an area of 0.0557 hects, 0.0543 hects, 0.05 hects, 0.04 hects, 0.09 hects, 0.07 hects and 0.02 hects situated at Burmanallah, Bimblitan Village under Port Blair Tehsil, South Andaman District. (PARA 36AA, PRAYER SECTION)." 10. The petitioners filed their written objection to the application for amendment and denied the claim of the opposite party No. 1 over one hectare of land, allegedly acquired by virtue of a deed of gift executed by her father. According to the petitioners, the deed of gift was manufactured and did not have any value as the same was not registered. It was their further contention that the transfer of the land by way of a gift without any permission of the authority was invalid being hit by the provision of the Regulation 159 of the Andaman & Nicobar Islands Land Revenue & Land Reforms Regulation, 1966. 11. The said application came up for hearing before the learned Joint Civil Judge, Senior Division at Port Blair and by an order dated October 11, 2018 the amendment was allowed and the opposite parties were permitted to file an amended plaint. 12. Aggrieved by the aforementioned order, the instant revisional application has been filed. 13. Mr. Krishna Rao appeared on behalf of the petitioners and Mr. Arun S Kumar appeared on behalf of all the opposite parties. 14. Mr. Krishna Rao submitted that when all the opposite parties Nos. 1 to 6 together filed the suit for partition against the petitioners and the proforma opposite party then the application by the opposite party No. 1 alone for amendment of the plaint was not in accordance with law. That the entire nature and character of the suit would be changed. That the amendment at such a belated stage was hit by the proviso to Order 6 Rule 17 of the Code of Civil Procedure. That the deed of gift was not in accordance with law as no permission was obtained from the authority before the transfer was made and the document could not be accepted as the same was unregistered deed and hit by the provisions of Section 17(A) of the Registration Act, 1908 (hereinafter refer as to the Act of 1908). 15. That the deed of gift was not in accordance with law as no permission was obtained from the authority before the transfer was made and the document could not be accepted as the same was unregistered deed and hit by the provisions of Section 17(A) of the Registration Act, 1908 (hereinafter refer as to the Act of 1908). 15. He relies on the judgment of the Apex Court passed in Chander Kanta Bansal vs. Rajinder Singh Anand reported in (2008) 5 SCC 117 . 16. The learned advocate appearing on behalf of the opposite parties submitted that the amendment was general in nature. That as the document was not in possession of the opposite party No. 1, the fact could not be pleaded nor could any evidence be adduced to that effect. According to him, the amendment could be allowed at any stage of the suit if the party seeking amendment despite due diligence could not have brought the matter to the knowledge of the Court earlier. He relies on the decisions in Kartari Devi and others vs. Udham Singh and others reported in AIR 1997 (HP) 70 and Suneel Sodhi vs. M.L. Sodhi reported in AIR (2004) DL 99. 17. Having heard the submissions made on behalf of the respective parties, I find from the plaint that the entire case for partition was based on the pleadings that the schedule property in the plaint of which their predecessor-in-interest late D. Prakasan was a settler should be divided amongst the heirs mentioned in paragraph 16 of the plaint equally as per the Hindu Law of Succession. It has been also pleaded that the plaintiff Nos. 2, 3 and 5 were residing in the property by constructing their respective houses and they need to know their actual share as such the property should be equally divided amongst the heirs of the deceased. In the examination-in-chief of the PW1, PW2 & PW3 and in the cross-examinations of PW1 and PW2, it has been stated clearly that the suit property should be divided equally as per the Hindu Law of Succession amongst all the legal heirs of the deceased. 18. In the examination-in-chief of the PW1, PW2 & PW3 and in the cross-examinations of PW1 and PW2, it has been stated clearly that the suit property should be divided equally as per the Hindu Law of Succession amongst all the legal heirs of the deceased. 18. Suddenly, after expiry of 8 years from the institution of the suit, the opposite party No. 1 filed the application for amendment and stated that at the time of filing of the suit, she inadvertently failed to mention that her father had gifted one hectare of the land in the suit property to her bearing survey plot No. 61/1, 61/2, 62, 63, 64, 112, 119 situated at Burmanallah, Bimbilitan village under Port Blair Tehsil, South Andaman District. Recently, while she was cleaning her house, she found the deed of gift after eight years from filing of the suit. The deed of gift was annexed to the application. The said deed of gift is not a registered document and the name of the opposite party No. 1 has been inserted by hand and there is a discrepancy in the description of survey number and measurement of the land with the averments made by the petitioner in the application for amendment. However, this court does not need to get into the genuineness of the deed of gift at this stage. 19. The opposite party No. 1 has also relied on a document which is an agreement entered in 2001 with a stranger giving him the right to pluck all the fruits from the trees and utilize the fallen trees for commercial use over a land measuring one acre, which was a garden given to her at time of her marriage by her father in survey No. 333 in Rangachang Village. The said document does not have any bearing with the property described in the schedule of amendment. 20. I find that the amendment was taken out after 8 years from the institution of suit when evidence of the PWs was near conclusion. In fact, cross-examination of PW1 and PW2 admittedly has been completed. There is nothing on record to show that the plaintiff in spite of due diligence could not have mentioned this fact either in the plaint or before the learned court for the last 8 years. 21. In fact, cross-examination of PW1 and PW2 admittedly has been completed. There is nothing on record to show that the plaintiff in spite of due diligence could not have mentioned this fact either in the plaint or before the learned court for the last 8 years. 21. The amendment is not formal in nature and inconsistent plea has been set up by the opposite party No. 1, inasmuch as, the specific case of the plaintiffs were that all the heirs of the deceased should be given equal share in the property as per the Hindu Law of Succession. 22. Now, the opposite party No.1 alone has filed an application claiming separate share of one hectare of land from the schedule property. This claim is inconsistent with the pleadings and averments in the plaint which remain as they were. I also find from the amendment sought to be made that she has categorically stated that she was in possession of the said land for several decades and from time to time used to give the same land on lease to other intending lessees. The fact that she was in possession of said land and she was giving the land on lease to outsiders, was definitely within her knowledge. Moreover, if the property was gifted to her at the time of her marriage she was in knowledge of the same for a long time but chose to remain completely silent and did not incorporate the fact either in the plaint or in the evidence. 23. An amendment after 8 years of filing of the suit of a fact which was within the knowledge of plaintiffs cannot be allowed at this stage as the same is barred by proviso Order 6 Rule 17 of the Code of Civil Procedure which is quoted 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." 24. The amendment ought not to have been allowed and the learned court below erred in holding that the amendment was necessary for adjudicating the real controversy between the parties as the amendment was not inconsistent with the pleadings and the fact proposed to be incorporated by way of an amendment was not known to the plaintiffs. 25. From the averments of the opposite party No.1 in the application for amendment, it is clear that she had knowledge of the fact. The other plaintiffs must have had knowledge of the fact as well. The opposite party No.1 specifically stated in the application for amendment that by virtue of the deed of gift she was in possession of one hectare of land which she was leasing out to outsiders. If that be so, all the plaintiffs must have had knowledge of the fact. I do not find any pleading in the amendment application to the effect that despite due diligence this fact could not be included in the plaint or brought on record on an earlier occasion. 26. The decision relied upon by Mr. Arun S Kumar in Kartari Devi and others vs. Udham Singh and others (supra) relates to declaration of right by way of adverse possession as an alternative prayer. The said decision does not apply to the facts of this case. 27. In Suneel Sodhi vs. M.L. Sodhi (supra) the amendment sought was to bring on record the existence of a will and the amendment was allowed at the stage when the trial had not begun in view of the fact that, the Will came into light only upon the death of the testator, and could not have been brought on record prior to that. 28. I find that despite having knowledge of the gift the opposite parties failed to mention the matter either in the pleadings or in their evidence. It is not a case where despite due diligence the fact of execution of the deed of gift could not have been brought on record as the same was not within the knowledge of the opposite party No.1. It is not a case that inspite of due diligence the fact could not have been mentioned before the commencement of trial. It is a settled legal proposition that trial commences with the framing of issues. 29. It is not a case that inspite of due diligence the fact could not have been mentioned before the commencement of trial. It is a settled legal proposition that trial commences with the framing of issues. 29. The expression due diligence has been discussed in the decision of Chander Kanta Bansal vs. Rajinder Singh Anand (supra). The relevant paragraphs are quoted below:- "14. Keeping the above broad principles in mind, let us ascertain whether the defendant has justiciable cause to file an application praying for amendment of a written statement for bringing an agreement dated 10-9-1982. We have already referred to the fact that the plaintiff had approached the court seeking a decree for mandatory injunction as early as in 1986. We also refer to the fact that within a short duration i.e. in 1986 itself, the defendant has filed a written statement. Absolutely, there is no whisper about the prior partition agreement dated 10-9-1982. No doubt, in the application for amendment, it was stated that her son who was a Chartered Accountant all along was looking after this suit and he died in the year 1998. It is also available from the very same application that apart from her first, son, namely, Sunit Gupta, the defendant has another son by name Navneet Agarwal. Admittedly, the son who was looking after the suit was none else than a Chartered Accountant. In such circumstance, if the alleged agreement dated 10-9-1982 between the plaintiff and the defendant was in existence nothing prevented her son, Chartered Accountant, to bring it to the notice of her counsel and refer it in the written statement filed in the year 1986. It is relevant to mention that in the reply, the plaintiff has specifically denied the same and asserted that the alleged agreement/partition deed dated 10-9-1982 is a forged document and based on the same, the proposed amendment cannot be allowed. It is also not in dispute and best known to both the parties that the suit which is of the year 1986 came to be taken up for trial only in 2004 and admittedly on the date of filing of the petition for amendment, the trial was on the verge of completion. It is also not in dispute and best known to both the parties that the suit which is of the year 1986 came to be taken up for trial only in 2004 and admittedly on the date of filing of the petition for amendment, the trial was on the verge of completion. It was brought to our notice that both sides have closed their evidence and completed their argument, but only at this stage the defendant filed the said application for amendment of her written statement. 15. As discussed above, though first part of Rule 17 makes it clear that amendment of pleadings is permitted at ay stage of the proceeding, the proviso imposes certain restrictions. It makes it clear that after the commencement of trial, no application for amendment shall be allowed. However, if it is established that in spite of "due diligence" the party could not have raised the matter before the commencement of trial depending on the circumstances, the court is free to order such application. 16. The words "due diligence" have not been defined in the Code. According to Oxford Dictionary (Edn. 2006), the word "diligence" means careful and persistent application or effort. "Diligent" means careful and steady in application to ones work and duties, showing care and effort. As per Blacks Law Dictionary (18th Edn.), "diligence" means a continual effort to accomplish something, care; caution; the attention and care required from a person in a given situation. "Due diligence" means the diligence reasonably expected from, and ordinarily exercised by a person who seeks to satisfy a legal requirement or to discharge an obligation. According to Words and Phrases by Drain-Dyspnea (Permanent Edn. 13-A) "due diligence" means reasonable diligence; it means such diligence as a prudent man would exercise in the conduct of his own affairs." 30. In the decision of Ajendraprasadji N. Pandey and another vs. Swami Keshavprakeshdasji N. and others reported in (2006) 12 SCC 1 , it has been categorically held as follows:- "41. We have carefully considered the submission made by the respective Senior Counsel appearing for the respective parties. We have also carefully perused the pleadings, annexures, various orders passed by the courts below, the High Court and of this Court. We have carefully considered the submission made by the respective Senior Counsel appearing for the respective parties. We have also carefully perused the pleadings, annexures, various orders passed by the courts below, the High Court and of this Court. In the counter-affidavit filed by Respondent 1, various dates of hearing with reference to the proceedings taken before the Court has been elaborately spelt out which in our opinion, would show that the appellant is precluded by the proviso to rule in question from seeking relief by asking for amendment of is pleadings. 42. It is to be noted that the provisions of Order 6 Rule 17 CPC have been substantially amended by the CPC (Amendment) Act, 2002. 43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognizing the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief. 44. .. 45. .. 46. .. 47. .. 48. .. 49. .. 50. .. 51. .. 52. .. 53. .. 54. In our opinion, the facts abovementioned would also go to show that the appellants are lacking in bona fides in filing this special leave petition before this Court. 44. .. 45. .. 46. .. 47. .. 48. .. 49. .. 50. .. 51. .. 52. .. 53. .. 54. In our opinion, the facts abovementioned would also go to show that the appellants are lacking in bona fides in filing this special leave petition before this Court. It is also to be noticed that the High Court has recorded relevant points in its elaborate judgment dated 5-10-2005 and have been dealt with despite the opposition of the contesting respondents that these pleas were not taken in the written statement. Under these circumstances, non-seeking of appropriate amendment at appropriate stage in the manner envisaged by law has disentitled the appellants to any relief. The amendment, in our view, also seeks to introduce a totally new and inconsistent case. 55. We have carefully perused the pleadings and ground which are raised in the amendment application preferred by the appellants at Ext. 95. No facts are pleaded nor are any grounds raised in the amendment application to even remotely contend that despite exercise of due diligence these matters could not be raised by the appellants. Under these circumstances, the case is covered by proviso to Rule 17 of Order 6 and, therefore, the relief deserves to be denied. The grant of amendment at this belated stage when deposition and evidence of three witnesses is already over as well as the documentary evidence is already tendered, coupled with the fact that the appellants application at Ext. 64 praying for recasting of the issues having been denied and the said order never having been challenged by the appellants, the grant of the present amendment as sought for at this stage of the proceedings would cause serious prejudice to the contesting respondent-original plaintiffs and hence it is in the interest of justice that the amendment sought for be denied and the petition be dismissed." 31. In the case of Baldev Singh and others vs. Manohar Singh and another reported in (2006) 6 SCC 498 it was settled that a plaintiff could not be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim. 32. For the reasons stated hereinabove the order impugned is set aside. The learned court below will proceed with the suit without taking into account the amended plaint but on the basis of the original pleadings. 33. 32. For the reasons stated hereinabove the order impugned is set aside. The learned court below will proceed with the suit without taking into account the amended plaint but on the basis of the original pleadings. 33. The revisional application is thus allowed. There shall, however, be no order as to costs. 34. Urgent certified copy of this order, if applied for, be supplied to the learned advocates appearing for the respective parties upon compliance of usual formalities.