Jharkhand High Court
Rabindra Kumar Singh @ Robin Singh vs Anil Kumar Sahay on 27 February, 2019
Equivalent citations: AIRONLINE 2019 JHA 699
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.392 of 2017
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1. Rabindra Kumar Singh @ Robin Singh, S/o Dharma Nath Singh
2. Bibhash Chandra Panijiar, S/o C.L. Panijiyar......... Petitioner Versus
1. Anil Kumar Sahay, S/o Kandhjee Sahay
2. S.K. Sarjahan, S/o S.K. Noor Hussain
3. Md. Sultan, S/o Late Abdul Hamid
4. Dilip Kumar Kedia, S/o Omkar Malkedia
5. Nitya Nand Modak
6. Ashish Chandra Modak Both Sons of Late Mahadev Chandra Modak
7. Shashibhusan Prasad, S/o Krishna Chandra Prasad .......... Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mrs. Susmita Lal, Advocate
For the Respondents : Mr. Vijay Shankar Prasad, Advocate
10/27.02.2019 This writ petition has been filed under Article 227 of the
Constitution of India, wherein order dated 03.10.2016 passed in Title Suit No.77 of 2011, whereby and whereunder, petition under Order 6 Rule 17 of the C.P.C. has been allowed.
2. It is the contention of the petitioner that the trial has commenced in the present suit and therefore, the amendment should not have been allowed by the trial Court, to add submission, a reference of the judgment rendered by the Hon'ble Apex Court in the case of Vidyabai and Ors. Vrs. Padmalatha and Anr., reported in AIR 2009 Supreme Court 1433, has been made.
3. Mr. Vijay Shankar Prasad, learned counsel appearing for the respondent/plaintiff has submitted that amendment sought for is necessary, just and proper for just decision in the suit, since it is a declaration of right and title over the suit property and during the pendency of the suit, some of the property has been sold out in favour of one Shashibhusan Prasad through by virtue of registered sale deed executed sometime in the year 2012 and therefore, the said fact, since occurred in course of pendency of the suit, necessitated the plaintiff to make an application under the provision of Order 6 Rule 17 in order to 2 avoid multiplicity of proceeding and for just and proper decision in the suit.
4. Having heard learned counsel for the parties and on appreciating their rival submissions, it is evident from the material available on record that the suit for declaration of right and title has been filed by the respondent/plaintiff over the land pertaining to Khata No.172, Plot No.730, 173 having area of 0.8 decimal corresponding to Plot No.A-120 of Grih Nirman Samiti which was purchased by the plaintiff by virtue of sale deed no.3392 dated 27.05.1992, he has started his construction work over the said plot but, the construction was stopped and therefore, the dispute arose which led the plaintiff/respondent no.1 to file a suit being Title Suit No.77 of 2011 for declaration of right, title, interest and possession over the land.
Subsequent to filing of the suit, the plaintiff has found that the construction work is going on over the said land and on inquiry, he was informed that the said land was purchased by Shashibhusan Prasad through registered deed in the year 2012 and therefore, the petition under Order 6 Rule 17 of the C.P.C. has been filed seeking therein amendment in the plaint to the effect as indicated hereinbelow:-
"15(a) That, the Defendant No.3, Rabindra Kumar Singh @ Robin Singh along with Bibhash Chandra Panjiyar (Defendant No.7) purchased 07 decimal of land from Ashish Chandra Modak (Defendant No.5) and Nityanand Modak ( Defendant No.6) through their power of attorney holder Dilip Kumar Kejriwal ( Defendant No.8) through registered Sale Deed No.1803, dated 17.02.2011. The Defendant No.3 has claimed that the said property has been purchased in survey Khata No.172, Plot No.730 & 731 at Mouza Chas, Dist.-Bokaro. It is submitted that Ashish Chandra Modak and Nityanand Modak have no right, title, interest and possession to sale the property to anybody and the sale of 07 decimal of land to Defendant No.3 & 7 by Defendant No.5 & 6 does not confer any right, title, interest and possession to the Defendant No.3 & 7.
15(b) That, the Defendant No.3 and others tried to illegally grab the land of the plaintiff, thereafter, the plaintiff filed a Title Suit No.77/2011 on 23.11.2011 and the Defendant No.3 appeared and filed his written statement. It is submitted that during pendency of the suit on 29.02.2016, the plaintiff had gone to his land purchased land by demolishing his boundary wall and thereafter, the plaintiff made complaint to Superintendent of Police, Bokaro and other administrative officials regarding construction work over the suit land though Title Suit No.77/2011 filed by the 3 plaintiff was till pending in the court of Learned Civil Judge, Senior Division 1st Bokaro.
15(c) That, when the plaintiff enquired about the construction over his land, he was informed that one Shashibhushan Prasad was constructing over his purchased land, thereafter, the plaintiff enquired from the person, who was supervising the construction work by whom the land was sold to Shashi Bhushan Prasad then he was informed that one Rabindra Singh @ Robin Singh had sold the land to Shashi Bhusan Prasd. He was astonished to know that one Ashish Chandra Modak and Nityanand Modak through their power of attorney holder namely Dilip Kumar Kejriwal, son of Prayag Chandra Kejriwal sold the land to Robin Singh and Bibhash Chandra Panjiyar through Registered Sale Deed No.8103, dated 17.02.2011 with the following boundary:
North : Land of the seller.
South : Rabindra Kumar & others East : Munna Babu & others West : 20 ft. Road.
The Plaintiff also found that said Rabindra Kumar Singh and Bibhash Chandra Panjiyar had executed Sale Deed No.0687 in favour of Shashi Bhushan Prasad on 24.01.2012 with the following boundary mentioned in the recital of the sale deed:
North : Ashish Chandra Modak & Others South : 10 ft. Kachha Road East : Land of Raju Jee West : 20 ft. Road.
15(d) That, it is submitted that the trial of the suit is going on and the Defendant No.3 had cross examined the plaintiff's witness but the Defendatn No.3 nowhere mentioned during the trial that he had already sold the land to Shashi Bhushan Prasad by Registered Sale Deed No.0687, dated 24.01.2012. It is submitted that all along the proceeding, the Defendant No.3 has concealed this fact regarding the sale of the land to Shashi Bhushan Prasad and this shows the malafide and dishonest intention of the Robin Singh, Bibhash Chandra Panjiyar and Shashi Bhushan Prasad to unlawfully grab the land of the plaintiff by making construction over the land of the plaintiff on got up and manufactured sale Deed.
15(e) That, since the construction over the suit land was going on at the behest of Shashi Bhushan Prasad and others, therefore, the plaintiff had made complaint before Circle Officer, Chas and Circle Officer, Chas was pleased to direct Shashi Bhushan Prasad to stop the construction over the suit land with immediate effect.
15(f) That, it is submitted that Ashish Chandra Modak and Nityanand Modak, Defendant No.5 & 6 respectively had no right, title, interest and possession over the suit land and the execution of the sale deed by them doesn't cofer any right, title, interest and possession to the subsequent purchasers.4
15(g) That, the Defendant No.5, 6, 7, 8 & 9 have deliberately changed the boundary of the land in the recital of the sale deeds in order to show that they had purchased the different land. The real fact is that the land was purchased by Ashok Vatika Grih Nirman Samiti from rightful owners and after the said purchase, the land was allotted to different members and they came into possession over their respective land without any let and hindrance and some of the members had also constructed building over their land. At present, the Plot No.A-121 which allotted to Smt. Sujata has been given to one developed Astha Residency.
15(h) That, The Ashok Vatika Grih Nirman Samiti allotted plots to its members by carving out three types of plots, Type-A, Type-B & Type-C in which the area of Type-A plot was of 08 decimal, the area of Type-B plot was of 6.5 decimal and area of Type-C plot was of 5.5 decimal. It is submitted that Northern side of the plaintiff's plot was allotted to Smt. Sujata, who purchased 08 decimal land by Registered Sale Deed No.3403, dated 27.05.1992. It is submitted that in the northern side of plot No.A-121, Plot No.A-122 is situated and the plot was allotted to Smt. Madhu, W/o Late Arvind Kumar and she purchased 08 decimal of land from Ashok Vatika Grih Nirman Samiti through Registered Sale Deed No.3401, dated 27.05.1992. Both Smt. Madhu and Smt. Sujata Sinha appointed M/s Maps Technology, represented by its partner Smt. Sangita Singh as their power of attorney holder and their power of attorney holder constructed a multi storied apartment namely Ashtha Residency and the Astha Residency is in the Northern side of the plaintiff's land.
15(i) That, Plot No.A-119 which was the Southern side of Plot No.120 was allotted to Sri. Shyama Kant Mishra by Ashok Vatika Grih Nirman Samiti through Registered Sale Deed No.3396, dated 27.05.1992 and said Shyama Kant Mishra sold plot No.A-119 to one Rajesh Mohan by Registered Sale No.5049, dated 14.07.2006. It is pertinent to mention here that after purchase of the Plot No. A-119 allotted to Sri. Shyama Kant Mishra, Sri Rajesh Mohan came into the peaceful possession of the land and constructed building over there.
15(j) That, in the Eastern side of the plaintiff's land, Plot No.A-111 and A-112 were allotted to Krishna Kant Choudhary and Vijay Kumar respectively by Ashok Vatika Grih Nirman Samiti and Krishna Kant Choudhary and Vijay Kumar purchase plot No.A-111 and A-112 respectively from Ashok Vatika Grih Nirman Samiti through Registered Sale Deed No.3402 and 3390, dated 27.05.1992. The said Krishna Kant Choudhary has sold His land (Plot No. A-111) to Smt. Chandra Bala Devi by Registered Sale Deed No.4444, dated 12.08.2003. The owner of the land of Plot No. A-112 Vijay Kumar has sold 06 Decimals of land out of 08 decimal to Smt. Rita Devi, W/o-Munna Prasad by Registered Sale Deed No.4532, dated 22.07.2004. It is pertinent to mention here that Plot No.A-112 was in the Eastern side of the Plaintiff's land.
15(k) That, it is submitted that Ashok Vatika Grih Nirman Samiti has not existence at this juncture and the numbered Plots of the Ashok Grih Nirman Samiti have changed its nature owing to subsequent purchase and sale and for better appreciation of the boundary of the Plaintiff's land, the boundary of the plaintiff's land is described as follows:
North- Astha Residency South- Rajesh Mohan East- Smt. Chandra Bala Devi & Smt. Rita Devi 5 West- 20 feet wide road."
5. The said amendment has been allowed vide order impugned, therefore, this writ petition has been filed.
6. Invoking the jurisdiction of Article 227 of the Constitution of India, learned counsel for the petitioner has submitted that petition under Order 6 Rule 17 ought not to have been allowed since the issue has been framed, meaning thereby, the trial has commenced and once the trial has commenced, the amendment ought not to have been allowed.
She has further submitted that plaintiff has failed to show due diligence, what led him not to insert that part of fact at the time of filing of the plaint.
7. This Court after appreciating the argument advanced on behalf of the petitioner, thinks it proper to refer the provision of Order 6 Rule 17 before going into the legality and propriety of the order, which is being quoted hereinbelow:-
"[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.]"
8. It is evident from the provision that prior to amendment in the C.P.C. i.e. prior to 01.07.2002, the amendment will not be allowed once the trial has commenced i.e. once the issue has been framed, but after the amendment having been carried out in the C.P.C. applicable with effect from 01.07.2002, the legislation has provided that even after the commencement of the trial, the amendment can be allowed but subject to the condition that the applicant needs to satisfy the Court regarding the due diligence i.e. what led the parties in not incorporating the fact at the time of filing of the plaint or the written statement, meaning thereby, subject to satisfying the Court with respect to the due diligence, the amendment can be 6 allowed even after the commencement of the trial i.e. after framing of the issue.
The amendment cannot be allowed even after commencement of the trial, if the due diligence shown but by the said amendment if the nature of suit will be changed and further if the amendment sought for, suffers from the subject of limitation.
9. The fact in hand is that the suit for declaration of right in title has been filed sometime in the Month of November, 2011, being Title Suit No.77 of 2011.
The dispute pertaining to the said suit is regarding the property in question which has been said to be purchased by the plaintiff by virtue of sale deed no.3392 dated 27.05.1992 and when the possession has not been given, the title suit has been filed.
The petitioner subsequently came to know that the aforesaid land has been transferred by virtue of sale deed dated 24.01.2012 in favour of Shashibhusan Prasad and on inspection, he has found that the construction work was going on which necessitated the plaintiff for filing a petition under Order 6 Rule 17 of the C.P.C.
10. The trial Court while allowing the same, taking into consideration the fact that the property in question, wherein the adjudication is to be made regarding title as has been claimed by the plaintiff by virtue of the deed of transfer dated 27.05.1992 but the same has been sold out in favour of Shashibhusan Prasad on 24.01.2012, therefore, in order to avoid multiplicity of proceeding and to pass effective decree, the prayer of inserting the questioning of the transfer of the property in question by virtue of registered sale deed dated 24.01.2012 has been allowed, apart from that subsequent purchaser has also been inserted as party to the proceeding as also the other amendments have also been allowed which pertains to subsequent development.
11. The contention as has been urged by the learned counsel for the petitioner that since the issue has been framed by amendment ought not to have been allowed and some of the plaintiff has already been examined and further the question of due diligence has not been appreciated by the trial Court.
712. The question of due diligence will occur if the amendment sought for is prior to filing of the plaint but here in the instant case, the amendment sought for is subsequent to filing of the suit i.e. the suit was filed in the Month of November, 2011 while the suit property in question was transferred in favour of Shashibhusan Prasad on 24.01.2012, if the said amendment will not be allowed by the trial Court, the question is that how the decree would be passed, what would be its effect, since the property in question now been transferred in favour of the subsequent purchaser.
13. The trial Court after considering the fact that if the said amendment would not be allowed, it will lead to multiplicity of proceeding, as such allowed the same.
The further question would be that how the petitioner will be prejudiced, prejudice only be caused if the party will not be provided an opportunity to rebut the same, allowing amendment, it implies the other side will get an opportunity to rebut the same.
14. The writ petition has been filed under Article 227 of the Constitution of India which has got very narrow scope and limited jurisdiction under its revisional jurisdiction that can only be exercised if there is an error apparent on the face of record or there is a jurisdictional error.
15. This Court also intends to go through the scope of Article 227 of the Constitution of India. 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 limit less 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 8 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. i. 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.
ii. 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. iii. 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.
iv. 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. v. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two 9 jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made.
vi. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
vii. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
16. In support of argument, learned counsel for the petitioner has relied upon the judgment rendered in the case of Vidyabai and Ors. Vrs. Padmalatha and Anr., reported in the case of AIR 2009 Supreme Court 1433. This Judgment pertains to the fact that once the trial has commenced, the amendment should not be allowed. It is the settled position of law that each and every judgment is to be passed on the basis of the factual aspect involved in the case. The fact leading to the said judgment as has been referred by the learned counsel for the petitioner, is that the factual aspect is quite different from the issue involved in the instant case, therefore, the same is not applicable.
17. In view of the entirety of facts and circumstances of the case and taking into consideration the reason assigned in the impugned order and according to the considered view of this Court, the trial Court while allowing the amendment has not committed any error.
1018. Accordingly, this writ petition lacks merit, hence dismissed.
Rohit/- (Sujit Narayan Prasad, J.)