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2020 DIGILAW 724 (JHR)

Surekha Prasad Tiwary @ Surekha Tiwary v. Bharat Coking Coal Limited

2020-07-07

RAJESH SHANKAR

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JUDGMENT : 1. This case is taken up through video conferencing. 2. The present writ petition has been filed for quashing the order dated 17th July, 2019 passed by the Civil Judge (Sr. Division)-III, Dhanbad in Title Suit no.250 of 2012, whereby the application of the petitioner dated 27th November, 2018 seeking amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure has been rejected. 3. The factual background of the case, as stated in the writ petition, is that the petitioner filed Title Suit no.250 of 2012, seeking declaration of her right, title & interest and confirmation of possession as well as permanent injunction with respect to the suit land, measuring an area of 14 Kathas in C.S. plot no.1911 under C.S. Khata no.142, Mauja Kolakusma. The petitioner pleaded in the said plaint that the land pertaining to plot no.1911 under Khata no.142 was originally recorded as ‘Gair Abad Malik’ land. Rani Prayag Kumari was the tenure holder, who settled the same to Babulal Mahto by a deed of settlement no.9312 dated 19th December, 1946 and accepted the rent. After vesting of the said land in pursuance of the Bihar Land Reforms Act, 1950, the rent was also paid to the State Government. A registered committee purchased the said land from the heirs of Babulal Mahto on 27th March, 1989 and got the same mutated in its name in the year 1992-93. The petitioner is a member of Kusum Vihar Sahkari Grih Nirman Samittee Ltd. She purchased land measuring an area of 14 Kathas in plot nos.1909 and 1910 by way of registered sale deed dated 18th July, 1988, which was subsequently rectified by a registered deed dated 27th March, 1989 as plot nos.1938 and 1911. The petitioner came in peaceful possession of the said land and got her name mutated vide Mutation Case No.2055 of 2005-06 and paid rent to the State Government also. On 24th September, 2012, the plaintiff came to know about a case registered under the provisions of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter to be referred as ‘the Act, 1971’) against her husband, being Eviction Case no.01 of 2012 and, thereafter, the said title suit was filed. On 24th September, 2012, the plaintiff came to know about a case registered under the provisions of The Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter to be referred as ‘the Act, 1971’) against her husband, being Eviction Case no.01 of 2012 and, thereafter, the said title suit was filed. On 27th November, 2018, the petitioner filed an application in the suit under Order VI Rule 17 of the Code of Civil Procedure for amendment of the plaint, seeking challenge to the order of eviction dated 13th September, 2012 passed in Eviction Case no.01 of 2012 against her husband as well as the order passed by the appellate authority in Misc. Appeal No.168 of 2012 on 16th September, 2016. The respondents filed rejoinder on 3rd May, 2019, opposing the proposed amendment made by the petitioner. The court below vide impugned order dated 17th July, 2019 passed in Title Suit No.250 of 2012 rejected the petitioner’s application for amendment, holding, inter alia, that the trial of the suit had already commenced and there was no illegality in the order dated 13th September, 2012 passed by the Estate Officer in Eviction Case no.01 of 2012. 4. Learned counsel for the petitioner submits that the learned court below should not have rejected the petitioner’s prayer for amendment merely on the ground that the hearing of the suit had commenced. Learned court below committed an error in deciding the case on merit while dealing with the amendment application. Thus, the learned court below has exceeded its jurisdiction in observing that there was no illegality in the order dated 13th September, 2012 passed in Eviction Case no.01 of 2012 without even entertaining the petitioner’s prayer for amendment. 5. Learned counsel for the petitioner in support of his argument puts reliance on the following judgments:- (i) 2010(3) JLJR 306 (M/s. Bharat Coking Coal Ltd. Vs. Dharam Raj Singh) (ii) 2012(3) JLJR 252 (Jharia Firebricks Pvt. Ltd. Vs. Bharat Coking Coal Ltd.) (iii) 2002(2) JLJR 629 (Madan Mohan Vadehra Vs. Bharat Coking Coal Ltd.) 6. 5. Learned counsel for the petitioner in support of his argument puts reliance on the following judgments:- (i) 2010(3) JLJR 306 (M/s. Bharat Coking Coal Ltd. Vs. Dharam Raj Singh) (ii) 2012(3) JLJR 252 (Jharia Firebricks Pvt. Ltd. Vs. Bharat Coking Coal Ltd.) (iii) 2002(2) JLJR 629 (Madan Mohan Vadehra Vs. Bharat Coking Coal Ltd.) 6. On the contrary, learned counsel for the respondents submits that an application seeking amendment under Order VI Rule 17 of the Code of Civil procedure cannot be allowed by the Trial Court in a routine manner after commencement of the trial, if the person seeking amendment fails to show his/her due diligence in raising the said issue before commencement of the trial. It is also submitted by the learned counsel for the respondents that as per Section 10 of the Act, 1971, an order passed by the Estate Officer or the appellate authority cannot be put in question in any original suit and, therefore, the amendment application filed by the petitioner was otherwise not in accordance with law. 7. Heard learned counsel for the parties and perused the contents of the writ petition. 8. So far as the case of Bharat Coking Coal Limited (Supra) is concerned, the Bharat Coking Coal Limited filed the said writ petition, challenging the order of the Appellate Court, whereby the order of the Estate Officer was set aside giving liberty to the aggrieved party to approach the Civil Court. The said writ petition was disposed of holding as under:- “12. In the light of the above submission, this application is disposed of with a liberty to the respondent to avail the remedy of filing a civil suit before the Civil Court of competent jurisdiction for declaration of their right, title and interest over the disputed land, within a period of two months from today. Till such time, the petitioner/B.C.C.L. shall not initiate any proceeding for eviction of the respondents from the disputed land.” 9. Till such time, the petitioner/B.C.C.L. shall not initiate any proceeding for eviction of the respondents from the disputed land.” 9. In the case of Madan Mohan Vadehra (Supra), the said petitioner filed the writ petition, challenging the initiation of eviction proceeding by the Estate Officer under the Act, 1971 and the same was disposed of by holding that since there was a disputed question of title, the respondent authorities would not proceed with the eviction case till the question of right and title was decided by the competent court of law in Suit no.3675 of 2000 already preferred by the respondents. 10. Further in the case of Jharia Firebricks Pvt. Ltd. (Supra), challenge was made to the initiation of eviction proceeding by the Estate Officer under the Act, 1971, which was allowed by quashing the proceeding pending before the Estate Officer, holding, inter alia, that the Estate Officer is not empowered to decide the complicated question of right and title, which can only be adjudicated by the competent court of civil jurisdiction. 11. It would, thus, be evident that in all the aforesaid three cases cited by the learned counsel for the petitioner, the orders of Estate Officer/ Appellate Authority (the District Judge under the Act, 1971) were challenged by filing writ petitions before this Court and the orders of eviction/appellate orders were set aside by this Court observing, inter alia, that serious disputed questions of title were involved in the said cases, which could not have been decided in summary proceeding, and the same can only be determined by the competent court of civil jurisdiction. In none of those cited cases, the parties were permitted to challenge the order of the Estate Officer/appellate authority passed under the provision of the Act, 1971 by filing civil suit. Thus, the observation made by this Court in the aforesaid case would not be applicable in the facts and circumstances of the present case. 12. So far as the background of the present case is concerned, a writ petition, being W.P.(C) No.6588 of 2016, was filed by the petitioner’s husband, namely, Digambar Prasad Tiwary, challenging the order of eviction passed by the Estate Officer and the appellate authority. The said writ petition was subsequently withdrawn on 22nd November, 2016. 12. So far as the background of the present case is concerned, a writ petition, being W.P.(C) No.6588 of 2016, was filed by the petitioner’s husband, namely, Digambar Prasad Tiwary, challenging the order of eviction passed by the Estate Officer and the appellate authority. The said writ petition was subsequently withdrawn on 22nd November, 2016. Now, the petitioner has sought amendment in the plaint challenging the order passed in Eviction Case no.01 of 2012 and the order passed in Misc. Appeal No.168 of 2012. 13. Section 10 of the Act, 1971 provides as under:- “10. Finality of orders.—Save as otherwise expressly provided in this Act, every order made by an estate officer or appellate officer under this Act shall be final and shall not be called in question in any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.” 14. On the perusal of Section 10 of the Act, 1971, it may be construed that every order made by the Estate Officer or the appellate authority under the Act, 1971 is said to be final, which cannot be called in question in any original suit, application or execution proceeding. 15. Otherwise also, the present title suit was filed by the petitioner in the year 2012 subsequent to the filing of the eviction case. Till 2018, the eviction proceeding was never challenged, rather only after the order was passed in Misc. Appeal No.168 of 2012 and the writ petition being W.P.(C) No.6588 of 2016 was withdrawn by the petitioner’s husband, she chose to challenge the order of eviction and the order passed by the learned District Judge in appeal by filing an application under Order VI Rule 17 of the Code of Civil Procedure. The said fact thus clearly shows that the petitioner had not shown her due diligence in seeking challenge to the orders passed in eviction case as well as in appeal (though the same is barred under law as discussed hereinabove). Thus, the petitioner also lacked due diligence so as to seek amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure particularly after commencement of the trial. 16. Thus, the petitioner also lacked due diligence so as to seek amendment of the plaint under Order VI Rule 17 of the Code of Civil Procedure particularly after commencement of the trial. 16. In view of the aforesaid discussion, I am of the view that the impugned order dated 17th July, 2019 passed by the Civil Judge (Sr. Division)-III, Dhanbad in Title Suit No.250 of 2012 does not require any interference of this Court. 17. The writ petition being devoid of merit is, accordingly, dismissed.