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2024 DIGILAW 643 (JHR)

Rajiya Khatun v. Hazara Khatun

2024-06-28

SUJIT NARAYAN PRASAD

body2024
JUDGMENT : SUJIT NARAYAN PRASAD, J. 1. Today, a supplementary affidavit has been filed by learned counsel for the petitioner in court. 2. Let it be kept with the record. Prayer: 3. The instant petition has been filed under Article 227 of the Constitution of India whereby and whereunder order dated 02.09.2023 passed in Title Suit No. 83 of 2006 by learned Addl. Civil Judge (Jr. Division)-VIII, Hazaribag by which the amendment petition dated 28.08.2003 filed by the plaintiffs under Order VI Rule 17 CPC has been rejected. 4. Brief facts of the fact, as per the pleadings made in the instant Civil Miscellaneous Petition, reads as under: 5. The plaintiffs have filed a title suit being Title Suit No. 83 of 2006 seeking relief for declaration of title, declaration of demarcation of land, appointment of pleader commission and delivery of possession of the schedule land. The petitioners-plaintiffs, when the suit was at the stage of argument, filed a petition under Order VI Rule 17 CPC seeking leave to make certain amendment in the plaint stating inter alia that due to typing and clerical mistake certain amendments are necessary in the plaint for the proper adjudication of the suit. Learned counsel for the defendants vehemently opposed the petition of the plaintiff. 6. The learned trial court considering the submissions advanced by the parties and considering the fact that the amendment has been sought for at the belated stage when the defendant has already concluded the final argument and the plaintiff has not furnished the satisfactory explanation regarding the delay in filing the amendment petition, rejected the petition filed by the plaintiff, against which the present petition. Argument on behalf of petitioners: 7. Mr. Rashidi, learned counsel for the petitioner has submitted that the impugned order suffers from error since without assigning any reason amendment petition has been rejected merely on the ground that the amendment petition has been filed at the belated stage when the defendant has already concluded the final argument. Further ground for rejecting the amendment petition has been taken that the plaintiffs-petitioners has not furnished any satisfactory explanation regarding the delay in filing the amendment petition. Further ground for rejecting the amendment petition has been taken that the plaintiffs-petitioners has not furnished any satisfactory explanation regarding the delay in filing the amendment petition. Contention has been raised that so far as the applicability of the law to allow the amendment in the plaint or the written statement, as the case may be, by filing petition under Order VI Rule 17 CPC is concerned, it can be considered at the any stage of the proceeding, subject to certain conditions i.e., when the nature of the suit is not changed; when the amendment would not result in introducing new cause of action and intends to prejudice the other party; when defeats the law of limitation, if fresh suit of amendment plaint would be passed; when there is a general rule it would be rejected but to avoid multiplicity. Herein, none of the ground is available and only on the ground that the amendment has been filed at belated stage, the amendment petition has been rejected. 8. It has further been submitted that the amendment sought for is formal in nature which are the necessary corrections which are to be carried out in the plaint, caused due to clerical mistake i.e., correction of description of plot no. i.e., in place of plot no. 1000 plot no. 1007 is to be corrected. It has been submitted since the same has been acknowledged by the petitioner at the belated stage hence the amendment petition has been filed for making necessary correction in the plot nos. as referred in the schedule property. 9. It has been submitted that the learned trial court without appreciating the fact that the amendment sought for is formal in nature and it is not going to change the nature of suit has rejected the petition merely on the ground that it has been sought for at the belated stage. 10. The learned counsel based upon the aforesaid ground has submitted that the impugned order therefore suffers from error and requires interference by this Court. Argument on behalf of respondents: 11. While on the other hand, Mr. 10. The learned counsel based upon the aforesaid ground has submitted that the impugned order therefore suffers from error and requires interference by this Court. Argument on behalf of respondents: 11. While on the other hand, Mr. Ranjit Kumar Sinha, learned counsel for the respondents, who are defendants in the suit, has submitted that there is no error in the order passed by the learned trial Court since the learned trial Court has considered the fact that the amendment has been sought for at the very belated stage when the defendants have concluded their argument and further there is no cogent reason assigned by the plaintiff regarding delay in filing the said petition. Analysis: 12. Heard learned counsel for the parties, gone across the material available on record as also the finding recorded by the learned trial court in the impugned order. 13. The issue involve in this case is the legality and propriety of the order passed by the learned trial Court wherein the petition filed under Order VI Rule 17 seeking therein the proposed amendment has been rejected vide order dated 02.09.2023. 14. This Court before proceeding further requires to refer herein the proposed amendment, which reads as under : Proposed amendment 1. That in the relief portion of the plaint at the end of para 1 words upon “Schedule Property” may be added. 2. That at the end of relief para no. 2 the words ‘in the Schedule” may be allowed to be added. 3. That the relief portion of plaint at the end of para no. 4 the word “property” may be added. 4. That in the Schedule portion of the plaint in the third line under column of plot the number “1000” may be replaced by “1007”. 15. From the proposed amendment it is evident that word ‘Schedule Property” has been sought to be added in relief portion; in relief portion paragraph 2 the word ‘in the Schedule’ has been prayed to be added; in the relief portion at paragraph 4 the word ‘property’ has been prayed to be added; and further in the Schedule portion of the plaint the number of plot which was mistakenly typed as 1000 has been prayed to be replaced by ‘1007’. 16. Admittedly, the said amendment has been filed at the stage when the defendants have concluded their argument. 16. Admittedly, the said amendment has been filed at the stage when the defendants have concluded their argument. The learned trial court has rejected the amendment petition filed by the plaintiffs-petitioners on two grounds i.e., the amendment has sought for at the belated stage when the defendant has already concluded the final argument and the plaintiff has not furnished any satisfactory explanation regarding the delay in filing the amendment petition. 17. This Court, in order to appreciate the ground as has been taken on behalf of petitioner, deems it fit and proper to refer the provision of Order VI Rule 17 CPC, which reads as under : “Order VI Rule 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.” 18. It is evident from the provision of Order VI Rule 17 CPC that amendment is normally to be allowed but subject to certain conditions i.e., 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. 19. Consideration of the scope of Order VI Rule 17 has been taken into consideration by the Hon’ble Apex Court in the case of J.J. Lal Private Limited & Ors. Vs. M.R. Murali & Anr. [ (2002) 3 SCC 98 ]. In the aforesaid judgment the Hon’ble Apex Court has been pleased to consider the judgment rendered in case of Majalti Subbarao Vs. P.V.K. Krishna Rao (deceased) by LRs [ (1989) 4 SCC 732 ] wherein the eviction case was filed under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 on the ground of bona fide requirement of the landlord. P.V.K. Krishna Rao (deceased) by LRs [ (1989) 4 SCC 732 ] wherein the eviction case was filed under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 on the ground of bona fide requirement of the landlord. In the written statement, the tenant denied the title of landlord which was sought to be made a ground for eviction submitting that such denial made out a ground for eviction under Section 10(2)(vi) of the Andhra Act. The Hon’ble Apex Court has rejected the argument on the ground that the denial of title must be anterior to the proceedings for eviction and held that even a denial of a landlord's title by the tenant in the written statement in an eviction petition under the Rent Act furnishes a ground for eviction and can be relied upon in the very proceedings in which the written statement containing the denial has been filed. The reasoning which was considered by the Hon’ble Apex Court in the case of J.J. Lal Private Ltd. (supra) is that to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord, would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of character as a tenant in the written statement. 20. The submission of the learned counsel for the tenant, which was made is that in any event the landlord had failed to apply for amendment of his plaint and incorporate the ground of denial of title therein as he was bound to do in order to get relief on that ground which had arisen after the eviction petition was filed. 21. The Hon’ble Apex Court dealt with the aforesaid ground of denial by holding that normally this would have been so but, in the present case, the Hon’ble Apex Court finds that the trial court, namely, the Rent Controller, framed an issue as to whether the tenant's denial of the landlord's title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition. 22. For ready reference paragraph 12 of the judgment is quoted as under : “12. We may straightaway refer to a decision of this Court in Majati Subbarao v. P.V.K. Krishna Rao [ (1989) 4 SCC 732 ] which was a case under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. Eviction petition was filed on the ground of bona fide requirement of the landlord. In the written statement, the tenant denied the title of landlord which was sought to be made a ground for eviction submitting that such denial made out a ground for eviction under Section 10(2)(vi) of the Andhra Act. This Court, rejecting the argument that the denial of title must be anterior to the proceedings for eviction, held that even a denial of a landlord's title by the tenant in the written statement in an eviction petition under the Rent Act furnishes a ground for eviction and can be relied upon in the very proceedings in which the written statement containing the denial has been filed. The reasoning which appealed to this Court was that to insist that a denial of title in the written statement cannot be taken advantage of in that suit but can be taken advantage of only in a subsequent suit to be filed by the landlord, would only lead to unnecessary multiplicity of legal proceedings as the landlord would be obliged to file a second suit for ejectment of the tenant on the ground of forfeiture entailed by the tenant's denial of character as a tenant in the written statement. The submission of the learned counsel for the tenant was that in any event the landlord had failed to apply for amendment of his plaint and incorporate the ground of denial of title therein as he was bound to do in order to get relief on that ground which had arisen after the eviction petition was filed. This Court held: (SCC p. 738, para 6) “We agree that normally this would have been so but, in the present case, we find that the trial court, namely, the Rent Controller, framed an issue as to whether the tenant's denial of the landlord's title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition.” 23. The Hon’ble Apex Court in the aforesaid judgment has further considered the issue involved in the Om Prakash Gupta Vs. Ranbir B. Goyal [ (2002) 2 SCC 256 ], wherein it has been pleased to hold that the ordinary rule of civil law is that the rights of the parties stand crystallized on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. 24. Such subsequent event may be one purely of law or founded on facts. 25. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. 26. In the later case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties. 27. For ready reference, paragraph 13 of the judgment is quoted as under : “13. Recently in Om Prakash Gupta v. Ranbir B. Goyal [ (2002) 2 SCC 256 ] while dealing with power of the court to take note of subsequent events and then to grant, deny or modify the relief sought for in the plaint, this Court has held: (See pp. 262-63, paras 11-12) “11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. 262-63, paras 11-12) “11. The ordinary rule of civil law is that the rights of the parties stand crystallised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied: (i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and (iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. *** 12. Such subsequent event may be one purely of law or founded on facts. In the former case, the court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties.” 28. It is, thus, evident that the Hon’ble Apex Court has emphasized that the need for amendment and the basic parameters for allowing such amendment is that there must be complete justice to the parties and if the subsequent event will not be brought to the part of the pleading and if there is likelihood of not getting complete justice to the parties then the amendment is to be allowed. 29. The Hon’ble Apex Court in the case Raj Kumar Gurawara (dead) through its LRs vs. S.K. Sarwagi and Company Private Limited & Anr. 29. The Hon’ble Apex Court in the case Raj Kumar Gurawara (dead) through its LRs vs. S.K. Sarwagi and Company Private Limited & Anr. [ (2008) 14 SCC 364 ] has laid down the proposition for the purpose of allowing the petition filed under Order VI Rule 17 in case certain conditions namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. 30. For ready reference, paragraph 18 of the judgment is quoted as under : “18. Further, it is relevant to point out that in the original suit, the plaintiff prayed for declaration of his exclusive right to do mining operations and to use and sell the suit schedule property and in the petition filed during the course of the arguments, he prayed for recovery of possession and damages from the second defendant. It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats the law of limitation. The plaintiff not only failed to satisfy the conditions prescribed in proviso to Order 6 Rule 17 but even on merits his claim is liable to be rejected. All these relevant aspects have been duly considered by the High Court and rightly set aside the order dated 10-3-2004 of the Additional District Judge.” 31. The similar view has been reiterated by Hon’ble Apex Court in the judgment rendered in Revajeetu Builders and Developers vs. Narayanaswamy and sons and Ors., (2009) 10 SCC 84 . Relevant paragraph -63 reads as under : “63. The similar view has been reiterated by Hon’ble Apex Court in the judgment rendered in Revajeetu Builders and Developers vs. Narayanaswamy and sons and Ors., (2009) 10 SCC 84 . Relevant paragraph -63 reads as under : “63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide; (3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money; (4) refusing amendment would in fact lead to injustice or lead to multiple litigation; (5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.” 32. Thus, it is evident that the Hon'ble Apex Court has laid down the conditions of amendment: (i) when the nature of the suit is not changed; (ii) when the amendment would not result in introducing new cause of action and intends to prejudice the other party; (iii) when defeats the law of limitation, if fresh suit of amendment plaint would be passed; (iv) when there is a general rule it would be rejected but to avoid multiplicity it can be allowed. 33. This Court, in order to appreciate the aforesaid legal position as to whether either of the condition is applicable has gone across the copy of the plaint, which has been appended with the supplementary affidavit. It is evident from paragraph 1 and subsequent paragraphs that the reference of three plots are there and in the schedule the same khata and plot is there. In the entire pleading there is no reference of plot no. 1000 rather there is reference of plot no. 1007. Likewise in the relief portion of the plaint at the end of para 1 words upon “Schedule Property”, at the end of relief para no. In the entire pleading there is no reference of plot no. 1000 rather there is reference of plot no. 1007. Likewise in the relief portion of the plaint at the end of para 1 words upon “Schedule Property”, at the end of relief para no. 2 the words ‘in the Schedule” in the relief portion of plaint at the end of para no. 4 the word “property” has been prayed to be added. 34. This Court has posed a pin pointed question upon learned counsel for the respondents that what prejudice would be caused if there is wrong reference of the plot no. in the schedule portion of the plaint is corrected. 35. Upon this, learned counsel for the respondent with all fairness has submitted that in entire pleading there is no reference of plot no. 1000 rather plot no. 1007 has been mentioned. 36. This Court in view thereof is of the view that when there is no reference of plot no. 1000 in the entire plaint rather plot no. 1007 has been mentioned and if in such circumstances in the schedule one of the plot no. which has been mentioned as 1000, which has been sought to be corrected as 1007, if will be corrected no prejudice will be caused to the defendants. 37. So far other proposed amendments are concerned, this Court is of the view that by addition of the word in the relief portion i.e., the word ‘schedule property’, and/or ‘in the schedule’ and/or ‘in the schedule, would not affect in any way the nature of the suit/plaint. 38. So far as the issue of allowing the amendment petition at belated stage is concerned that will also to be governed by the principle if any prejudice will be caused to any of the parties. 39. The principle has been propounded in the cases, as referred hereinabove, that only in four conditions as referred hereinabove the amendment is to be allowed but the learned trial court has gone into other grounds that at such a belated stage the amendment cannot be allowed. 40. 39. The principle has been propounded in the cases, as referred hereinabove, that only in four conditions as referred hereinabove the amendment is to be allowed but the learned trial court has gone into other grounds that at such a belated stage the amendment cannot be allowed. 40. It is settled principle of law that amendment can be allowed at a belated stage if the nature of suit is not going to be changed but it is only for the purpose of protecting the right of other side so as not to cause any prejudice, the requirement of the concerned court to grant liberty to file additional written statement but that is not the case herein. 41. Since the instant petition has been filed under Article 227 of the Constitution of India thus this Court also intends to go through the scope of Article 227 of the Constitution of India. 42. Dealing with the scope of Article 227 of the Constitution of India, 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 limitless 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. 43. 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. 44. 43. 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. 44. 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. 45. 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. 46. This Court on consideration of principle laid down to show interference as has been propounded by Hon’ble Apex Court as referred herein above is of the view that reason which has been assigned in not allowing the amendment petition i.e., the amendment has been sought for at the belated stage when the defendant has already concluded the final argument and the plaintiff has not furnished the satisfactory explanation regarding the delay in filing the amendment petition, is not sustainable in the eye of law. 47. This Court, therefore, is of the view that there is error on the face of the order. As such the order passed by the learned trial Court warrants interference by this Court under Article 227 of the Constitution of India. 48. Accordingly, order dated 02.09.2023 passed in Title Suit No. 83 of 2006 by learned Addl. Civil Judge (Jr. Division)-VIII, Hazaribag is hereby quashed and set aside. 49. Accordingly, the instant Civil Miscellaneous Petition stands allowed. 50. As such the order passed by the learned trial Court warrants interference by this Court under Article 227 of the Constitution of India. 48. Accordingly, order dated 02.09.2023 passed in Title Suit No. 83 of 2006 by learned Addl. Civil Judge (Jr. Division)-VIII, Hazaribag is hereby quashed and set aside. 49. Accordingly, the instant Civil Miscellaneous Petition stands allowed. 50. The matter is remitted before the learned trial court to pass fresh order within 15 days from the date of receipt/production of copy of this order. 51. With the aforesaid observations and directions, the instant petition stands disposed of. 52. Pending Interlocutory Application, if any, stands disposed of.