Gauhati High Court
Ashok Kumar Deb Purkayastha & 4 Ors vs Mustt. Rahena Begum on 18 May, 2017
Equivalent citations: 2017 AIR CC 3070 (GAU), (2017) 175 ALLINDCAS 745 (GAU) (2018) 1 GLR (NOC) 16, (2018) 1 GLR (NOC) 16
Author: Prasanta Kumar Deka
Bench: Prasanta Kumar Deka
1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM &
ARUNACHAL PRADESH)
PRINCIPAL SEAT
CRP (I/O) No. 106/ 2016
1. Shri Ashok Kumar Deb Purkayastha,
Son of late Jitendra Chandra Deb Purkayastha,
2. Sri Bashab Bijoy Deb Purkayastha,
Son of late Jitendra Chandra Deb Purkayasth,
3. Sri Shibabrata Deb Purkayastha,
Son of late Karuna Sindhu Deb Purkayastha,
All are residents of village Balidara, P.O. Latu- 788781,
District Karimganj, Assam.
4. Smti Sunanda Deb Purkayastha,
Wife of late Sudhangshu Ranjan Deb Purkayastha,
Flat No. G.-1, Nirmal Nivas, Kahilipara,
P.O. Guwahati- 781018,
District- Kamjrup (M), Assam,
5. Smti Indrani Bose,
Daughter of late Sudhangshu Ranjan Deb Purkayastha,
Wife of Sri Pratap Bose, south Sarania, Ulubari,
P.O. Guwahati 781017,
District- Kamrup (M), Assam.
....... Petitioners/ defendants
- Versus-
Mustt. Rahena Begum,
Wife of Md. Nezam Uddin,
Village Balidara,
P.O. Latu- 788781
....... Respondent/ Plaintiff
Advocate for the appellants: Mr. N. Dhar,
Mr.l B. Malakar,
Mr. T.U. Laskar,
Mr. S. Dasgupta,
Ms. U Baruah
2
...... Advocates.
Advocate for the respondents: Ms. R. Choudhury,
......Advocate.
-BEFOR E-
HON'BLE MR. JUSTICE PRASANTA KUMAR DEKA
Date of hearing : 18.05.2017
Date of judgment & order : 18.05.2017
JUDGMENT & ORDER (ORAL)
Heard Mr. N. Dhar, learned counsel, appearing on behalf of the petitioners and Ms. R. Choudhury, learned counsel, appearing on behalf of the sole respondent. 2] In this revision petition, the respondent is the plaintiff in Title Suit No. 184/2015 pending in the court of the learned Munsiff No. 2 at Karimganj. The petitioners are the main defendants in the said suit. The suit by the respondent/ plaintiff was for declaration of right and injunction. The reliefs 3 so prayed for by the respondent/ plaintiff are reproduced herein below:
"a) For declaration that the 2nd Schedule suit land is the path of the plaintiffs purchased Ist Scheduled homestead land, the right of way of which is transferred to the plaintiff as incidental easementary right by registered Deed No. 1343 dated 20.04.2012;
b) For declaration that the plaintiff has easementary right in the 2nd Scheduled path which is acquired by purchase;
c) For declaration that the principal defendants have no right to sell the 2nd Scheduled path of the plaintiff to any other persons;
d) For declaration that the principal defendants have no right to create any obstruction in using the 2nd scheduled path by the plaintiff in any manner whatsoever;
e) For permanent and temporary injunction restraining the principal defendants from selling the 2nd Scheduled suit path to any other person and from creating any obstruction in using the 2nd scheduled suit path by the plaintiff in any manner;
f) For cost of the suit;
g) For any other relief or reliefs as the court deem fit and proper;" 4
3] The suit land shown in the schedules mentioned in the plaint are also reproduced herein below:
"IST SCHEDULE Pargonah- Kushiarkul, Mouza- Balidara, Old Dag No. 273 of Khatia No. 195, New Dag No. 354 of periodic Patta No. 8 Butted and bounded as follows:-
East: Land of proforma defendant Nos. 5, 6, 7 and others purchased from Jharna Bhattacharjee. West: Land of Manik Das and Ashok Bijoy Purkayastha. North: Land of Manik Das and Ashok Bijoy Purkayastha. South: Pond of the proforma defendant Nos. 8 & 9 who are sons of late Sankar Giri.
(Within this boundary homestead type land measuring an area of 1 (one) Kedar, 5 (five) Josti i.e. 0.335 acre land).
2ND SCHEDULE Pargonah- Kushiarkul, Mouza- Balidara, Old Dag No. 273 of Khatia No. 195, New Dag No. 354 of periodic Patta No. 08 Butted and bounded as follows:-
East: Panchayat Path.
West: Homestead land of the plaintiff described in the Ist Schedule
above.
North: 3rd Schedule land described in below.
South: Land of the proforma defendant Nos. 5 & 9.
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(Within this boundary 4 cubit breadth and about 100 cubit length path).
3RD SCHEDULE Pargonah- Kushiarkul, Mouza- Balidara, Patta No. 25 Dag No. 355. Butted and bounded as follows:-
East: Panchayat Path. West: Land of Manik Das and others. North: Land of Fakrul Islam. South: Land of Second Schedule described above.
(Within this boundary land measuring an area of 0.265 Acre)".
4] The present petitioners filed their written statement and denied the contention of the respondent/ plaintiff made in the plaint. In the relief sought for by the respondent/ plaintiff, the second schedule land with new Dag No. 354 of Patta No. 8 was pleaded for and subsequently by way of an application under Order VI Rule 17 of the CPC, the respondent/ plaintiff sought for introduction of the following by way of amendment in the plaint.
"3. That in the 2nd schedule of the plaint it is wrongly inserted that old dag No. 273 of Khatian No. 195 new dag No. 354 of Patta No. 8 instead of old dag No. 274. New dag No. 355 of periodic 6 Patta No. 25. So, by an amendment the dag number of 2nd schedule ought to be written as "Old dag No. 274, new dag No. 355 of Patta No. 15."
Further the southern boundary of the 2nd schedule it is wrongly written that there is land of proforma defendant Nos. 5 to 9 but it ought to have been land defendant Nos. 5 and 6 and then through dag No. 355 and touches the panchayat path to the east and by the northern boundary of the said path there are six pacca pillars also be inserted by amendment."
5] The petitioners/ defendants objected the amendment sought for on the ground that the plaintiff/ respondent by way of the said amendment sought to change the nature of the suit including the subject matter of the suit by introducing a new plot of land covered by separate dag and as such the same is liable to be rejected. The learned court below vide order dated 10.6.2016 passed in Misc. Case No. 276/2015 arising out of the said T.S. No. 184/2015 allowed the said amendment petition by holding that the amendment shall not change the nature of the suit and make out a new cause of 7 action. The said order has been put under challenge in this revision petition.
6] Mr. Dhar submits that the plaintiff respondent by way of the said amendment included the land covered by Dag No. 355 but the cause of action so far the respondent is concerned arose with respect to land covered by Dag No. 354 i.e. the second schedule land. However, it is submitted that if the present amendment is allowed to remain, under such circumstances, the original second schedule as pleaded in para 4 of the plaint and its boundary are to be changed but no such amendment is introduced and the same would cause prejudice to the present petitioners/ defendants. It is also submitted that the original cause of action of the plaintiff/ respondent arose against the proforma defendants but by the way of the said amendment, the earlier cause of action has been deviated inasmuch as the plaintiff alongwith the said application for amendment sought for striking out the names of the proforma defendants, which was allowed by the court below. 8 7] So Mr. Dhar submits that there is a shift in the original cause of action of the plaintiff/ respondent, there is a change in the subject matter of the suit property and as such the learned court below was wrong in holding that the purpose of the amendment would not change the nature of the case so as to make a new one. Mr. Dhar accordingly submits that the said findings of the court below is wrong inasmuch as by introducing the said amendment, the nature of the suit has changed and as such the order of amendment is liable to be set aside.
8] In support of his submission, Mr. Dhar relied on in the case of State of Madhya Pradesh Vs. Union of India, reported in (2011) 12 SCC 268 and submits that the ratio of the said decision that amendment cannot be claimed as a matter of right and under all circumstances and said amendment are to be allowed in the pleading to avoid multiplicity of litigations. It is also held by the Hon'ble Supreme 9 Court that it is settled principle of law that leave to amend would be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit.
9] Mr. Dhar further relied on in the case of Baldev Singh and others Vs. Manohar Singh and another, reported in (2006) 6 SCC 498. The said decision was with regard to amendment of the written statement. However, Mr. Dhar pointed out that while deciding the said petition, the Hon'ble Apex Court held that an amendment of a plaint and amendment of written statement are not necessarily governed by exactly the same principle. However, some general principles are common to both, but the rule that the plaintiff cannot be allowed to amend his pleadings so as to alter materially or substitute his cause of action or the nature of his claim has necessarily no counterpart in the law relating to amendment of the written statement 10 10] So Mr. Dhar submits that similar is the situation in the present revision petition. The learned court below by allowing the said amendment petition had caused the suit to be changed in its nature including the cause of action and as such interference is required by this court by setting aside the said amendment order.
11] Mr. Dhar in addition to the submission made hereinabove also submits that in the event, this court feels not to interfere with the impugned order, then the question of maintainability of the suit be directed to be examined by the trial court.
12] Ms. Choudhury learned counsel appearing on behalf of the respondent submits that the impugned order allowing the amendment requires no interference by this court. The amendment under no circumstances neither changes the nature of the suit nor there is a shift in the cause of action of the plaint of respondent. Against the submission of Mr. Dhar that the 11 question of maintainability to be decided by the trial court and the direction to that effect may be given by this court, Ms. Choudhury learned counsel submits that no such direction be given by this court inasmuch as the petitioners/ defendants are at liberty to raise the question of maintainability by filing their additional written statement against the amended plaint and thereafter it is the discretion of the learned trial court to frame necessary issues on the basis of the pleadings as per the provision of the CPC. Accordingly, the learned counsel submits that this revision petition be dismissed.
13] Submission of the learned counsels are considered. Perused the amendment petition and the plaint of the plaintiff/ respondent. At Para 7 of the plaint, the plaintiff/respondent pleaded that on 15.6.2015 when the plaintiff from reliable source came to know about the plan of selling the 2nd Scheduled path by the principal defendants, she objected to it, but the principal defendants did not pay any heed to it rather they told the plaintiff that the 2nd schedule path is their land 12 and they would sell the same alongwith their 3rd Schedule land described in the schedules of the plaint.
14] Thus the cause of action so far the plaintiff/ respondent is concerned had accrued both with respect to second and third schedule land described in the plaint. Coming to the amendment petition, it is found that the plaintiff/ respondent sought to introduce the old Dag No. 274 by the new Dag No. 355 of patta No. 15 in the second schedule land described in the plaint. As apparent from the amendment petition, the plaintiff respondent has never sought for any introduction of new prayer in the form of separate relief, rather the plaintiff respondent is satisfied with the relief prayed for earlier. However, the plaintiff/ respondent sought to introduce the old Dag No. 274 and new Dag No. 355 of Patta No. 15 in the second schedule of the plaint.
15] As already discussed, a specific cause of action against the present petitioners/ defendants had already been 13 pleaded in the plaint. Considering the said discussion, this court finds that the amendment if introduced would not change the nature and character of the suit nor the same would introduce a new cause of action against the petitioners/ defendants.
16] Regarding the submission as to decision on the point of maintainability of the suit, it is the discretion of the learned trial court and that too on the basis of the pleading of the parties and accordingly no direction would be given by this court to the trial court to decide the question of maintainability, rather if the parties more specifically the petitioners/ defendants raises the question of maintainability in the additional written statement then the same would be decided by the trial court subject to the conditions for deciding a preliminary issue. Accordingly this petition is dismissed and disposed of.
JUDGE Eam...