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2020 DIGILAW 17 (CAL)

Susmita Mukherjee v. Dipali Mukherjee And Anr

2020-01-03

BISWAJIT BASU

body2020
JUDGMENT Biswajit Basu, J. - The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiff in a suit for partition and is directed against the order dated August 28, 2017 passed by the 1st Court of learned Civil Judge (Senior Division), Barasat, District. 24 Parganas(North) in Title Suit No. 5772 of 2014 old Title Suit No. 165 of 2008 whereby the learned Trial Judge has dismissed the application filed by the petitioner under Order VI Rule 17 of the Code of Civil Procedure seeking amendment of the plaint with costs holding that the amendment sought for is barred by limitation. 2. The petitioner by the proposed amendment sought to include in the suit a new prayer for cancellation of the sale deed being no. 1712 for the year 1985 registered at the office of ADSR, Barasat, District. 24 Parganas(North) executed by the mother of the petitioner, the defendant no. 1 of the suit in favour of one Shayamal Ghosh and also for inclusion of some new properties in the suit claiming to have interest therein which she allegedly discovered subsequently. 3. The learned Trial Judge has dismissed the said application for amendment holding that since plaintiff had acquired knowledge of the said deed way back in the month of April, 2006 through the written objection of the defendants to the application for injunction filed by the plaintiff in the suit, the proposed amendment being prayed in the year 2016 is barred by limitation. 4. The prayer of the petitioner for inclusion of some new properties in the suit has been refused on the ground that all the co-sharers of properties described under Schedule 'C' of the application for amendment have not been impleaded in the suit, properties described under schedules E and F of the said application have been allotted exclusively to the defendant no. 2 by the final decree passed in Title Suit No. 02 of 1978 and the description of the property under schedule G of the said application is vague. 5. Mr. Hirak Mitra, learned senior counsel appearing on behalf of the petitioner contends that the defendant no. 2 by the final decree passed in Title Suit No. 02 of 1978 and the description of the property under schedule G of the said application is vague. 5. Mr. Hirak Mitra, learned senior counsel appearing on behalf of the petitioner contends that the defendant no. 1, the mother of the petitioner has sold the properties of her major daughter on the basis of the permission of the Court but the law does not authorise the Court to grant such permission in respect of the property belonging to a major person. Mr. Mitra relying on the decision of the Hon'ble Supreme Court in the case of OFFICIAL TRUSTEE, WEST BENGAL AND OTHERS Vs. SACHINDRA NATH CHATTERJEE AND ANOTHER, (1969) AIR SC 823 further contends that lack of authority affects the jurisdiction of the Court and the said permission since has been culminated into a deed of sale, the proposed amendment aimed to challenge the legality of the said deed cannot be thrown out of consideration at the threshold on the ground of limitation. 6. Mr. Mitra, then places reliance on the decision of the Privy Council in the case of MACFOY Vs. UNITED AFRICA CO., LTD, (1961) 3 AllER 1169 to contend that the execution of the deed is a nullity being based on a void act of the defendant no. 1 as such limitation cannot be an absolute bar to put the said deed under challenge. 7. He further contends that in the said written objection the defendants no doubt had disclosed about the impugned deed but it cannot be said that by such discloser the plaintiff became aware of her right over the properties transferred through the said deed, to a third party, according to him mere knowledge of the said deed is not enough to prevent the plaintiff from exercising her right to rescind the said deed being barred by limitation unless it is proved that the plaintiff even after knowing about her right over the property so transferred remained inactive to challenge it. Mr. Mitra, supplies support to his such contention from the decision of the Court of appeal in the case of PAYMAN Vs. LANJANI AND OTHERS., (1984) 3 AllER 703 . 8. Mr. Asish Chandra Bagchi, learned senior counsel appearing on behalf the defendants/opposite parties responding to the argument of Mr. Mr. Mitra, supplies support to his such contention from the decision of the Court of appeal in the case of PAYMAN Vs. LANJANI AND OTHERS., (1984) 3 AllER 703 . 8. Mr. Asish Chandra Bagchi, learned senior counsel appearing on behalf the defendants/opposite parties responding to the argument of Mr. Mitra, submits that the prayer of the plaintiff for amendment of the plaint to incorporate the prayer for cancellation of the said deed is barred by limitation on the face of it. He submits that admittedly the plaintiff had acquired the knowledge about the said deed from the written said objection to the application for injunction which was disposed of on contest on April 06, 2009 and long prior thereto the said written objection was served upon the plaintiff. He, therefore, submits that the learned Trial Judge is absolutely justified in dismissing the said application for amendment being barred by limitation when such bar is apparent on the face of it. In support of his such contention he refers to an unreported decision of this Court in the case of BIMAL KUMAR DAS Vs. AJIT KUMAR DAS AND OTHERS dated November 07, 2019 passed in C.O. 1780 of 2019. Heard learned counsel for the parties, perused the materials on record. 9. The amendment of pleadings cannot be refused when question arises on such an amendment is a mixed question of law and fact and the said dispute could be made a subject matter of the issue in the suit after allowing the amendment as prayed for, such view has been approved by the Hon'ble Supreme Court in the case of RAGU THILAK D. JOHN VS. S. RAYAPPAN AND OTHERS, (2001) 2 SCC 472 . 10. This Court is conscious about it's limitation to go into the merit of the amendment sought for at the time of allowing or refusing the prayer for said amendment but such limitation does not make the Court powerless to take a blind bit of notice to ascertain whether the amendment sought is for the purpose of bringing some facts on record relating to the act of a party to the suit which prima facie appears to be void affecting the right of the other party over the subject matter of the suit. 11. 11. It appears from the said written objection of the defendants to the said application for injunction that the defendants have admitted that the date of birth of the plaintiff was June 22, 1964 and the order permitting the defendant no. 1 to sale the properties of the plaintiff was passed on February 23, 1985, therefore, on the face of record the plaintiff was major on the date when the defendant no. 1 obtained the permission to sale the property of the plaintiff describing her a minor. The act of the defendant no. 1 in obtaining the said permission when prima facie appears to be void, it is rightly pointed out by Mr. Mitra that the said permission since has matured into a deed of sale, ingression of pleadings by amendment to throw challenge to such a deed cannot be denied on the ground of limitation only particularly when the defendant no. 1 is not entitled to claim that a right has accrued in her favour by the passage of time since the act of the defendant no. 1, complained of is incurably bad. In this context it is profitable to quote the following passage from the decision of the Privy Council reported in [1961] 3 ALL E.R. 1169(supra) relied on by Mr. Mitra:- "The defendant hear sought to say therefore that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is something convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there." (Emphasis Supplied by me). 12. It is automatically null and void without more ado, though it is something convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there." (Emphasis Supplied by me). 12. The power to make amendment should not as a rule be exercised where it's effect is to take away from a defendant a legal right which has accrued to him by laps of time, in the present case, as has been discussed above although no such right has been accrued in favour of the defendant no. 1, yet there are cases where such considerations are outweighed by the special circumstances of the case as has been observed by the privy council in the case of CHARAN DAS AND OTHERS Vs. AMIR KHAN AND OTHERS, (1921) AIR PC 50 . The Hon'ble Supreme Court in the case of L.J. LEACH AND CO. LTD, AND ANOTHER Vs. MESSRE. JARDINE SKINNER AND CO., (1957) AIR SC 357 following the aforementioned decision the privy council has held that it is no doubt true that Courts would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment sought be ordered, and does effect the power of the Court to order it, if it is required in the interest of justice. 13. The attempt of the plaintiff to challenge the said deed from the admitted facts of the case appears to be bona fide and the interest of justice demands that the legality of the said deed must be tested in the suit. It is not clear from the materials on record that whether the plaintiff from the said written objection became aware of her right over the property transferred through the said deed by the defendant no. 1 but remained inactive to challenge it thereby allowing the period of limitation to expire, therefore, mere knowledge of the existence of the said deed cannot be reckoned as the starting point of the period of limitation to challenge the said deed. Mr. 1 but remained inactive to challenge it thereby allowing the period of limitation to expire, therefore, mere knowledge of the existence of the said deed cannot be reckoned as the starting point of the period of limitation to challenge the said deed. Mr. Mitra, is right in relying on the decision of the Court of appeal in the case reported in (1984)3 ALL ER 703 (supra) on this score. That apart when the proposed amendment of plaint is aimed to challenge the jurisdiction of the Court to grant permission to the defendant no. 1 to sale the property of the plaintiff on a date when she was adult. The entry of such pleadings by way of amendment to the records of the suit cannot be denied on the ground of limitation only. In fact all the aforementioned factors make the said point of limitation as an issue to be decided in the suit. 14. The plaintiff by the second part of the proposed amendment is seeking to include some new properties allegedly discovered by her subsequently as the joint properties to the parties to the suit. In the event it is found that all the co-sharers of some of the said properties are not parties to the suit or some of the said properties are the exclusive properties of one of the parties to the suit or the description of some of the said properties are vague the claim of the plaintiff over the said properties shall ultimately be declined but the same cannot be the ground for refusal of the prayer of the plaintiff for amendment of the plaint. The decision relied on by Mr. Bagchi, in the case of BIMAL KUMAR DAS Vs. AJIT KUMAR DAS AND OTHERS (supra) is clearly distinguishable in the facts of the present case, as in the said case the plaintiff sought amendment of the plaint to incorporate the prayer for a decree of mandatory injunction to recover the admitted possession of the defendant after laps of twenty one years. Summing up the discussion made above this Court is of the view that the order impugned is not sustainable and is accordingly set aside. The application filed by the petitioner for amendment of plaint is allowed. The plaintiff is permitted to file amended plaint within two weeks from date. Summing up the discussion made above this Court is of the view that the order impugned is not sustainable and is accordingly set aside. The application filed by the petitioner for amendment of plaint is allowed. The plaintiff is permitted to file amended plaint within two weeks from date. The defendants are permitted to file their additional written statement within two weeks from date of receipt of the copy of the amended plaint. C.O. 3378 of 2017 is thus allowed. No order as to costs. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.