Calcutta High Court (Appellete Side)
Goraknath Gupta vs Pranab Kr. Dutta & Ors on 10 April, 2012
Author: Soumen Sen
Bench: Soumen Sen
1 10.04.12
Basudev C.O. 1416 of 2011 With C.O. 1210 of 2012 Goraknath Gupta VS Pranab Kr. Dutta & Ors.
Mr. Dhiraj Tribedi
- For the petitioner in C.O. 1416 of 2011 & The O.P.s in C.O. 1210 of 2012.
Mr. Hiranmoy Bhattacharya
- For the O.P.s in C.O. 1416 of 2011 & petitioner in C.O. 1210 of 2012.
By consent of the parties C.O. 1210 of 2012 is taken up on the day's list.
A copy of the said application has been served upon Mr. Tribedi in Court.
A suit for eviction was instituted against the petitioner- defendant before the Small Causes Court at Calcutta registered as Ejectment Suit no. 74 of 2005-C. The said suit was decreed on June 20, 2005. In terms whereof the plaintiff- opposite party was entitled to recover khas possession of the suit premises in respect of the following schedule property :
"All that one room on the 1st floor at premises No. 48, Nirmal Chandra Street, P.S. Muchipara, Kolkata - 700 012 and butted and bounded in the manner following that is to say :-
On the North : By 49/A, Nirmal Chandra Street; On the South : By 45, Nirmal Chandra Street; On the East : By 1, Dhiren Dhar Sarani' On the West : By Nirmal Chandra Street."2
The petitioner preferred an appeal against the said judgment and decree dated June 20, 2005 before the learned West Bengal Land Reforms and Tenancy Tribunal. The said Appeal was dismissed on merits on November 21, 2005 and the judgment and decree of the learned trial Court was affirmed. At the time of disposal of the said Appeal, the petitioner prayed for six months' time to vacate the suit premises. However, no such undertaking was filed before the said Tribunal.
After the dismissal of the said Appeal, the plaintiff initiated an Execution Proceding for enforcement of the judgment and decree dated June 20, 2005 before the learned 3rd Bench, Small Causes Court, Calcutta registered as Ejectment Execution Case No. 172 of 2005. The order of affirmation passed by the learned West Bengal Land Reforms and Tenancy Tribunal was challenged by the petitioner in this Hon'ble Court. While the writ application was pending, learned Judge, 3rd Bench, Small Causes Court, Calcutta fixed December 19, 2005 for delivery of possession of the suit premises to the plaintiff under Section 39 (XV) of the West Bengal Premises Tenancy Act, 1997. Consequent upon such direction, the bailiff gave possession of the suit premises to the plaintiff. However, such possession was restored to the petitioner by an order dated December 20, 2005 passed by this Hon'ble Court in an application filed by the petitioner in the pending writ application. Ultimately, by the judgment and order dated September 4, 2006, the said writ application was dismissed on merits and the Hon'ble Division Bench directed that the judgment and order dated September 4, 2006 passed by this Court should be treated as a decree.
3Learned Judge 3rd Bench, Small Causes Court, Calcutta was directed to take necessary steps to execute the said decree. The said decree passed by the Hon'ble Division Bench was challenged by the petitioner by preferring a Special Leave Petition being no. 1633 of 2006. The said Special Leave Petition was dismissed by the Hon'ble Supreme Court summarily on October 16, 2006. Thereafter in the said Execution Proceeding an order was passed on March 1, 2007 by which the learned Court below fixed March 15, 2007 as date for delivery of possession. The bailiff in order to implement the said order went to the suit premises but could not execute the writ of possession as the description of the boundary was found to be incorrect. The plaintiff-petitioner filed an application under Order VI Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the schedule to the plaint in the manner indicated hereinbelow :
"(a) After the words 'on the North' in place of 'by 49/A, Nirmal Chandra Street" the words/figures/sentence "rooms in occupation of the plaintiffs of the same premises No.48, Nirmal Chandra Street, Kolkata - 700012" being incorporated.
(b) After the wods "on the South" the words and figure appearing to the effect "by 45, Nirmal Chandra Street," may be deleted and the following words and figures may be substituted therein.
(c) After the words "on the West" the words appearing thereafter to the effect "by Nirmal Chandra Street" may be deleted and they may be substituted by the words "passage leading to the room in occupation of the Decree Holders in the first floor of the Suit building."
The said application for amendment was rejected by the learned trial Judge by an order dated May 31, 2007. The said order was challenged in the Civil Revisional Jurisdiction of 4 this Court in C.O. 2027 of 2007. In considering the said application, a learned single Judge of this Hon'ble Court made the following observations :
"A comparison of the schedule to the plaint and the amendments proposed indicate that the petitioners were not merely making formal alterations and/or changes in the description of the suit property. In the plaint, the plaintiff/petitioner sought recovery of one room on the 1st floor at Premises no. 48, Nirmal Ch. Street as per the description in the schedule.
By the proposes amendments, the petitioners were purporting to incorporate "rooms in occupation of the plaintiff" in Premises No. 48, Nirmal Ch. Street, Kolkata
- 700 012.
Having regard to the nature of the amendments proposed, it cannot be said that the amendments were merely formal in nature and related to description of the suit property. The learned Court below rightly held that the proposed amendments would change the description of the suit property and/or in other words, enlarge the scope of the suit.
Mr. Chatterjee appearing on behalf of the petitioners cited the judgments of the Supreme Court in the case of Sajjan Kumar vs. Ram Kishan reported in 2005(13) SCC 89 where the Supreme Court held that amendment of the plaint to rectify incorrect description of the suit property was permissible upon imposition of costs, even at final stages of the suit since refusal to permit amendment would cause unnecessary complications in the execution stage. In the aforesaid case the Supreme Court further held that failure of Trial Court to exercise jurisdiction to allow amendment could be corrected by the High Court in exercise of jurisdiction under Article 227.
In the instant case the suit has been decreed on the basis of the schedule that was sought to be amended. The amendments proposed were not mere alteration in description of suit property as observed above.5
Mr. Chatterjee also cited the judgment in the case of Baldev Singh vs. Manohar Singh reported in (2006)6 SCC 498 where the Supreme Court held that amendment of Written Statement could not be refused on the ground that inconsistent pleas were being set up, since defendants could take inconsistent pleas in defence to a claim in a suit. The judgment has no application in this case.
Mr. Shyama Prasanna Roy Chowdhury has, on the other hand, cited the judgment of the Supreme Court in the case of Dwaraka Das vs. State of Madhuya Pradesh & Anr. Reported in 1999(3) SCC 500 where the Supreme Court deprecated the invocation of Sections 151 and 152 by lower courts to alter judgments and decrees and held that correction could only be made of mistakes and omissions which were accidental and non-intentional and did not go to the merits of the case. The allowing of the amendments would, in this case, in effect, amount to alteration of the judgment and the decree.
I am inclined to accept Mr. Roy Chowdhury's submission that the amendment in the instant case would enlarge the scope of the suit which had been decreed on the basis of the description of the suit property in the schedule to the plaint.
The order of the learned court below does not call for interference."
The plaintiff, being aggrieved by the said order in affirming the order of the learned trial Court in refusing to allow such amendment, preferred a Special Leave Petition before the Hon'ble Apex Court being S.L.P. No. 21838 of 2007. The said S. L. P. was however dismissed summarily by the Hon'ble Apex Court on November 30, 2007. Thereafter the learned trial Judge proceeded with the said execution proceeding. This time the plaintiff filed an application under Section 151 read with Section 152 of the C.P.C. for amendment of the decree by which they intend to incorporate 6 the schedule which forms part of the amendment application filed under Order VI Rule 17 of the C.P.C.
In view of the observations made by the learned single Judge on August 31, 2007, the said application could not have been allowed and accordingly, the same has been dismissed. In the meantime, the defendant-petitioner filed an application under Section 47 of the C.P.C. The said application was dismissed on the ground that in view of affirmation of the decree passed by the Hon'ble Division Bench was upheld by the Hon'ble Supreme Court the said application under Section 47 of the C.P.C. is not maintainable.
It is settled law that things which cannot be achieved directly, the same cannot be achieved indirectly. The petitioner in the suit was under no misapprehension of the fact that the decree passed in the suit would affect his right and the said decree was challenged on merits and affirmed by the Hon'ble Division Bench. In view thereof, the judgment debtor cannot reagitate the same issue under the garb of an application under Section 47 of the C. P. C. However, in view of the finding of the learned single Judge in the Civil Revisional Jurisdiction that the proposed substituted amended schedule are not mere alteration in description of the suit property and would enlarge the scope of the suit which had been decreed on the basis of the description of the property in the schedule of the plaint, the application filed by the plaintiff cannot succeed. Similarly, the application filed by the judgment debtor also cannot succeed since the issues 7 have already been settled by the Hon'ble Division Bench while affirming the said decree.
Moreover, the learned single Judge while dealing with the question of delivery of possession on the earlier occasion made the following observation:
"The stand that the bailiff could not execute the writ of possession by reason of error in description of the property, is difficult to appreciate. If the bailiff had executed the writ of possession on 19th December, 2005, as contended by the plaintiff/petitioners, misdescription of the suit property cannot now be the ground for not delivering possession of the suit property."
In view thereof, it is needless to mention that the decree for recovery of possession has to be restricted to the schedule mentioned in the suit and not in respect of the proposed substituted amended schedule as incorporated in the application filed under Order VI Rule 17 read with Section 151 of the C.P.C.
In view thereof, the C.O. 1416 of 2011 and C.O. 1210 of 2012 fail.
However, there shall be no order as to costs.
Urgent photostat certified copy, if applied for, be given to the parties upon compliance of necessary formalities.
(Soumen Sen, J.) 8