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2019 DIGILAW 977 (JHR)

Ashiruddin Ansari v. Umar Ali

2019-05-02

SUJIT NARAYAN PRASAD

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ORDER : 1. The writ petition is under Article 227 of the Constitution of India, whereby and whereunder, order dated 03.05.2017 passed by the Civil Judge (Sr. Div.)-VI, Dhanbad in Title Suit No.243 of 2014, whereby and whereunder, the trial Court has rejected the petition filed by the petitioner/plaintiff under Order 6 Rule 17. 2. It is the case of the petitioner that a declaratory suit for declaring the right and title over the property in question has been filed, at that time when the defendants have tried to encroach upon the land. The petitioner is claiming the title over the land in question by virtue of the right of their predecessor-in-interest of the recorded raiyat, since their names were referred in the revenue survey. The trial Court has issued notice to the defendants, in pursuance thereto, written statement has been filed, wherein, the pleading made by the plaintiff in the plaint has been disputed and denied by claiming the title over the said property by virtue of sale deed no.6558 dated 06.08.1942 and sale deed no.12242 dated 19.07.1965. 3. The petitioner has filed a petition under Order 6 Rule 17 of the C.P.C. seeking therein the amendment to the effect that he may be allowed incorporate the following paragraphs after paragraph-6A:- “(6B) That, the Sale Deed No.6558 dated 06-08-1942 had never been executed by the plaintiff’s father and his co-sharer at any point to time and the said Sale Deed has never been acted upon and it is without consideration and the defendants did not acquire right, title, interest upon the suit land and it is a mere paper exercise. (6C) That, the late Sale Deed No.12242 dated 19.07.1965 is also a paper transaction and without consideration money and it has never been acted at all. And the Sale deed came in picture.” 4. The trial Court has rejected the said petition vide impugned order, against which, the present writ petition has been filed invoking the jurisdiction conferred under Article 227 of the Constitution of India. 5. And the Sale deed came in picture.” 4. The trial Court has rejected the said petition vide impugned order, against which, the present writ petition has been filed invoking the jurisdiction conferred under Article 227 of the Constitution of India. 5. The petitioner has assailed the aforesaid order on the ground that the trial Court while rejecting the said petition has not considered the scope and object of Order 6 Rule 17 of the C.P.C. and further since in the written statement, new fact has come which was not within his knowledge at the time of filing of the plaint, therefore, the situation warrants to invoke the jurisdiction of the trial Court as conferred under Order 6 Rule 17 of the C.P.C., since the proper amendment is necessary to be allowed for proper adjudication of the issue and also in order to avoid the multiplicity of proceeding. 6. Having heard learned counsel for the petitioner and looking to the factual aspect as also the reasons recorded in the impugned order, this Court deem it fit and proper before entering into the legality and propriety of the order impugned to refer the provision of Order 6 Rule 17 which reads as hereunder:- “[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.]”. Reference in this regard may be made to the judgment rendered in the case of Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr., reported in (2008) 14 SCC 364 , in the case of Revajeetu Builder and Developers vs. Narayanaswamy and Sons and Ors., reported in (2009) 10 SCC 84 . Reference in this regard may be made to the judgment rendered in the case of Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr., reported in (2008) 14 SCC 364 , in the case of Revajeetu Builder and Developers vs. Narayanaswamy and Sons and Ors., reported in (2009) 10 SCC 84 . The scope of allowing the amendment under the aforesaid provision has been changed after the amendment brought in the Code of Civil Procedure w.e.f. 01.07.2002 wherein it has been enacted by adding provision namely no application for amendment of the pleading shall be allowed after the trial has been commenced unless the Court comes to conclusion that in spite of due diligence the party could not have raised the matter, reference in this regard be made judgment rendered by the Hon’ble Supreme Court in the case of Chander Kanta Bansal Vs. Rajinder Singh Anand reported in (2008) 5 SCC 117 , in the case of Sumesh Singh Vs. Phoolan Devi & Ors. reported in (2009) 12 SCC 689 and in the case of Abdul Rehman & Anr. Vs. Mohd. Ruldu & Ors. reported in (2012) 11 SCC 341 . It is settled position of law that when amendment introduces a claim on a new cause of action, the amendment shall be effected from the date of amendment and it will relates back to the date of institution of the original suit, this has been considered by the Hon’ble Apex Court in the case of Siddalingamma and Anr. vs. Mamtha Shenoy, reported in (2001) 8 SCC 561 . It is also settled proposition of law that if any amendment is to be dissolute if afresh suit on the amended claims would be barred by limitation on the date of application, reference in this regard may be made to the judgment rendered in the case of L.J.Leach and Co. Ltd., & Anr. Vs. Messrs. Jairdine Skinner and Co Respondents. reported in (1957) SCR 438, in the case of T.N. Alloy Foundary Co. Ltd. Vs. T.N. Electricity Board & Ors. reported in (2004) 3 SCC 392 , Ashutosh Chaturvedi Vs. Prano Devi Alias Parani Devi & Ors. reported in (2008) 15 SCC 610 , and in the case of Ravajeetu Builders and Developers Vs. Narayanaswamy and Sons & Ors. reported in (2009) 10 SCC 84 . 7. Ltd. Vs. T.N. Electricity Board & Ors. reported in (2004) 3 SCC 392 , Ashutosh Chaturvedi Vs. Prano Devi Alias Parani Devi & Ors. reported in (2008) 15 SCC 610 , and in the case of Ravajeetu Builders and Developers Vs. Narayanaswamy and Sons & Ors. reported in (2009) 10 SCC 84 . 7. Thus it is evident from the provision of Order 6 Rule 17 along with the authoritative pronouncement as indicated hereinabove that the amendment can be allowed subject to condition that the due diligence is to be shown by the applicant, the same may not be allowed if a suit on the amended claimed would be barred by limitation and if the nature of suit is going to be changed. It is evident by going across the provision as contained under Order 6 Rule 17 as also the proposition laid down by the Hon’ble Apex Court in the judgment referred hereinabove that the amendment is to be allowed in order to proper adjudication of the issue, subject to the condition that if the situation and the condition to allow the amendment, if in existence, then only the amendment sought for is to be allowed, otherwise, it is to be rejected. 8. So far as the factual aspect revolves around in this case that the petitioner is seeking prayer to amend by incorporating the amending plaint by granting leave to the petition by incorporating paragraph nos.6B and 6C as referred above after paragraph no.6A. 9. Admittedly, the reference of the sale deed no.6558 dated 06.08.1942 and sale deed no.12242 dated 19.07.1965 have been made by the defendant in the written statement and on that pretext, the petitioner has filed a petition under Order 6 Rule 17 for amendment to incorporate the said fact into the pleading of the plaint but question herein is that as to whether the petitioner was having any knowledge with respect to the sale deed as has been referred in the proposed amendment part i.e., under paragraph nos.6B and 6C thereof. It is evident from the perusal of the plaint of the suit (annexure1), wherein, at paragraph-6, reference of sale deed no.12242 dated 19.07.1965 has been made which has referred in paragraph no.6B sought to have been incorporated in the plaint, therefore, it is not in dispute that the petitioner is not knowing about the sale deed no.12242 dated 19.07.1965. It is evident from the perusal of the plaint of the suit (annexure1), wherein, at paragraph-6, reference of sale deed no.12242 dated 19.07.1965 has been made which has referred in paragraph no.6B sought to have been incorporated in the plaint, therefore, it is not in dispute that the petitioner is not knowing about the sale deed no.12242 dated 19.07.1965. The question is that the sale deed no.6558 dated 06.08.1942 has referred in the written statement by the defendant, even accepting the argument as has been advanced by the learned counsel for the petitioner that the sale deed no.6558 dated 06.08.1942 was not within his knowledge, even though, the same cannot be said to be a ground for allowing the amendment petition for the reason that the petitioner was knowing about the sale deed no.12242 dated 19.07.1965 by which, the land has been transferred to one Maqbool Mian by one Fuku Bibi who has got the title over the property in question by virtue of the sale deed no.6558 dated 06.08.1942 as would appear from paragraph nos.15 and 16 to the written statement as has been annexed under annexure-2 to the writ petition, therefore, the fact about the transfer of the landed property in question by virtue of registered sale deed no.12242 dated 19.07.1965 was within the knowledge of the petitioner as per the statement made at paragraph no.6 to the plaint and therefore, it cannot be said that the petitioner when knowing about the transfer of title in favour of Maqbool Mian by virtue of sale deed no.12242 dated 19.07.1965, then the common question would be that on what basis, the title over the part of the property has been transferred in favour of the Maqbool Mian but even knowing this aspect of the matter, he has not bothered to question the subsequent sale deed dated 19.07.1965 by making specific prayer in the plaint. Further, when Maqbool Mian is claiming title by virtue of sale deed no.12242 dated 19.07.1965 i.e., on the basis of the sale deed no.6558 dated 06.08.1942 and as such, it is not a case where the petitioner for the first time has claimed about the transfer of the said property in favour of the predecessor-in-interest of the defendant rather, it is said to be within the knowledge of the petitioner in view of the specific step taken in this regard in paragraph no.6 to the plaint. 10. In the light of this factual aspect, finding recorded by the trial Court has been considered by the trial Court and accordingly, it is considered, wherefrom, it is evident that the trial Court has recorded the reason that the plaintiff is claiming their share in capacity of son of Ali Mian Pir who was co-sharers in the land situated in Mouja Tilabani bearing Khata No.36, Plot No.171, Area 11 decimals, Plot No.167, Area 14 decimals, Plot No.1889, Area 51 decimals. The defendants in the written statement have submitted that the grand-mother of the defendant namely Smt. Fuku Bibi purchased the land vide sale deed no.6558 dated 06.08.1942 from the co-sharers who are ancestors and on the basis of this sale deed, the defendants are claiming their title. The bone contention between the plaintiff and defendant is that on the one hand, the petitioner is claiming title on the basis of the being recorded raiyat having their names of the ancestors referred in the revenue survey, while on the other hand, the defendants are claiming their title on the basis of sale deed no.6558 dated 06.08.1942 and sale deed no.12242 dated 19.07.1965 and therefore, if the amendment could be allowed by allowing the petition under Order 6 Rule 17 of the C.P.C., the entire plea taken by defendant in the written statement has been sought to be meted out by filling the lacuna, while at the time of filing of the plaint, if any, and further if the parties is filing a suit for declaration of title for any claim whatsoever they are required to stand on their own legs without any support from the written statement since, if any, plea is being taken by the defendant in the writ statement, it is to be decided by the trial Court by framing issue and by providing adequate opportunity to defend by rebutting the stand either in the plaint or in the written statement. 11. 11. In view of the facts and circumstances involved in this case, is not come under the fold to allow, in view of the proposition of law as has been laid down and referred hereinabove and in view of the object of the Order 6 Rule 17 of the C.P.C., accordingly, this case is not in the nature warranting any interference under Article 227 of the Constitution of India, since, it has been held 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. 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. i. The power of superintendence is not to be exercised unless there has been; (a) An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or (b) gross abuse of jurisdiction; or (c) an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. ii. 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. iii. iii. 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. iv. 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. v. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. 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. vi. 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. vii. 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. vii. 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. 12. In view of the discussion made hereinabove and the legal position referred above, according to the considered view of this Court, needs no interference in the impugned order, hence, the writ petition fails and is, dismissed.