Calcutta High Court (Appellete Side)
Sri Gopal Krishna Saha vs State Of West Bengal & Ors on 16 December, 2009
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
1
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
CAN No. 218 of 2006
in
W.P. No. 10442 (W) of 2003
Sri Gopal Krishna Saha
v.
State of West Bengal & Ors.
Mr Ashok De, senior advocate, with Mr Kartick Kumar Roy, advocate, for the petitioner. Mr
Saibalendu Bhowmick and Ms Manisha Bhowmick, advocates, for the second respondent. Mr
G.R. Saha and Mr T. Chakraborty, advocates, for the sixth respondent. Mr Amar Mitra, advocate, for the seventh respondent.
Heard on: December 16, 2009.
Judgment on: December 16, 2009.
The Court:- This application dated January 9, 2006 has been taken out by the petitioner in connection with his pending art.226 petition dated July 10, 2003. The petitioner wants to amend the petition.
The petitioner submitted a complaint dated October 3, 1999 to the West Bengal Medical Council alleging professional misconduct of two doctors in that their utter negligence and callous handling of the medical case led to the death of his newborn baby. By a letter dated April 23, 2003 the council informed him that there was no merit in the allegations.
The relevant contents of the letter of the council dated April 23, 2003 are as follows:
"Please refer to your complaint dated 3.10.99 against Dr. Ujjwal Chatterjee and Dr. Abhishek Biswas, alleging utter negligence and callous handling, leading to the death of a new born baby.
The Penal & Ethical Cases Committee, after considering the subject complaint file threadbare including the depositions of yourself as well as of the alleged doctors and opinions of various experts, submitted their report to the Council for further consideration in this respect. The Council at its meeting held on 17.4.2003 considered the pros and cons of the report of the Penal and Ethical Cases Committee conclusion that the charges, brought by you against the said doctors, could not be substantiated."2
Feeling aggrieved, the petitioner wrote a letter dated April 30, 2003 to the council. The relevant contents of the letter are set out below:
"With reference to your letter No. 201-C/74-99 dated 23/04/03 on the captioned matter, I am to inform you that I am quite dissatisfied with the conclusion arrived at by your council and as such I would like to prefer appeal to the appropriate authority for review of the complaint. I, therefore, am in need of a copy of the detailed report along with the relevant papers presented by the concerned penal & ethical cases committee and as considered by your council for arriving at their final decision in the matter as stated above for my use to file an appeal within the stipulated time.
Under the above circumstances I would like to request you to arrange for sending the said report and the relevant papers immediately."
Since the council did not respond to his letter dated April 30, 2003, the petitioner wrote another letter dated June 4, 2003 requesting the council once again to supply him copy of the detailed report submitted by the penal and ethical cases committee concerned to the council and copies of other relevant papers so that he might lodge an appeal within the prescribed period. The council did not respondent to his letters. Feeling aggrieved, he took out the art.226 petition.
In paras.18 and 19 of the art.226 petition the petitioner has stated as follows:
"18.The West Bengal Medical Council vide its letter No. 201-C/74-99 dt. 23.4.2003 disposed of the complaint of the petitioner mentioning therein simply that the complaint against the erring doctors could not be substantiated. The letter does neither indicate the grounds of rejection of my complaint nor does it contain any detailed information in this regard. In other words, the decision communicated is a sketchy one and does not speak itself. A copy of the letter No.201- C/74-99 dt. 23.4.2003 of the council is annexed hereto and marked with letter "P10".
19.Your petitioner vide his letter dt. 30.4.2003 to the West Bengal Medical Council expressed his utter dissatisfaction with the decision of the council and requested for a copy of the detailed report of the penal and Ethical cases committee (which is a fact finding report) as also other relevant papers considered by the council to dispose of his complaint to enable him to prefer an appeal in an effective manner to the competent authority within the time frame stipulated in the Bengal Medical Act, 1914. A copy of the letter dt. 30.4.2003 is annexed hereto and marked with letter "P11."
In para. 20 the petitioner has alleged that the in spite of requests the council refused to supply him the required papers, and that the council adopted the course "ostensibly with an intention to shield the erring doctors." The final reliefs he sought are as follows:
"a) A writ in the nature of Mandamus commanding the respondent authorities concerned to supply to your petition a copy of the report of the penal and Ethical cases committee (which is a fact finding report) as also other relevant papers considered by them while disposing of the complaint of your petitioner;3
b) A writ in the nature of certiorari and directing the respondent authorities concerned to certify and transmit the entire records of the case before this Hon'ble Court so that conscionable justice may be administered by way of passing appropriate order or direction."
By an order dated July 22, 2003 the petition was admitted and directions for affidavits were given. It was taken up for final hearing first on August 9, 2005 when further hearing was adjourned until next day. However, further hearing resumed on August 16, 2005 when, over the course of hearing, Mr De, counsel for the petitioner, prayed for adjournment on the ground that the petitioner would consider the question of amending the petition; the prayer was allowed. Thereafter the petitioner took out CAN No.9218 of 2005 for adding certain parties including the two doctors. The application was allowed by an order dated December 21, 2005. After this, the amendment application dated January 9, 2006 was filed.
The petitioner wants to insert several paragraphs after para.21, several grounds after para.22 and two prayers after prayer (d) into the art.226 petition. In substance, by the amendments the petitioner wants to incorporate certain subsequent developments and grounds questioning the decision of the council taken in its meeting dated April 17, 2003 in the art.226 petition. By the decision dated April 17, 2003 the council turned down the petitioner's complaint against the two doctors dated October 3, 1999. The respondents are contesting the amendment application. They have filed their respective oppositions to which the petitioner has filed his replies.
Mr De has submitted that the proposed amendments are essentially necessary for determining the real questions in controversy between the parties. Referring to the provisions of the Bengal Medical Act, 1914, ss. 17, 25 and 26, he has argued that from the decision of the council dated April 17, 2003, the petitioner, intending to appeal, could not actually appeal, for the provisions of s.26 do not provide for an appeal from a decision of the council turning down a complaint against a doctor; and that, since the petitioner's remedy, if any, is only before the writ court, the amendments of the petition are necessary. He has relied on Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors., AIR 2006 SC 1647.
Mr Bhowmick, counsel for the council, has argued as follows. The amendments disclosing a case contradictory to the one in the petition, if allowed, will completely change the nature and character of the case stated in the petition. By filing the petition, the petitioner sought a mandamus 4 commanding the council to supply him the report and other relevant documents so that he might appeal from the council's decision dated April 17, 2003. By the proposed amendments now he wants to challenge the decision under art.226, around three years after the filing of the petition. The time to lodge an appeal from the decision had expired long before the date at which the amendment application was taken out. The petitioner cannot be permitted to question the decision under art.226 by amending his petition after expiration of the time limit for the statutory remedy of appeal. The amendment is barred by the mandatory provisions of the proviso to O.6, R.17 of the Code of Civil Procedure, 1908.
He has relied on: L.J. Leach and Co. Ltd. & Anr. v. Messrs. Jardine Skinner and Co., AIR 1957 SC 357; Vineet Kumar v. Mangal Sain Wadhera, (1984) 3 SCC 352; Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary & Ors., 1995 Supp (3) SCC 179; K. Raheja Constructions Ltd. v. Alliance Ministries & Ors., AIR 1995 SC 1768; Vishwambhar & Ors. v. Laxminarayan & Anr., (2001) 6 SCC 163; T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board & Ors., (2004) 3 SCC 392; Usha Balashaheb Swami & Ors v. Kiran Appaso Swami & Ors., 2007 (3) Supreme 582; Vidyabai & Ors. v. Padmalatha & Anr., 2009 (1) Supreme 238; and Revajeetu Builders & Developers v. Narayanaswamy & Sons & Ors., 2009(7) Supreme 333.
Mr Chakraborty, counsel for the sixth respondent, has contended that the proviso to O.6, R.17 of the Code of Civil Procedure, 1908 is a bar to an order allowing the application for amendment of the petition trial whereof had commenced long before it was taken out. Mr Mitra, counsel for the seventh respondent, has adopted Mr Bhowmick's arguments.
In L.J. Leach and Co. Ltd. & Anr. v. Messrs. Jardine Skinner and Co., AIR 1957 SC 357, the Supreme Court held (para.16):
"It is no doubt true that Courts would, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interests of justice."
In Vineet Kumar v. Mangal Sain Wadhera, (1984) 3 SCC 352, their Lordships of the Supreme Court held (para.16):
"Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amendment does not constitute an addition of a new cause of action, or 5 raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limitation."
In Basavan Jaggu Dhobi v. Sukhnandan Ramdas Chaudhary & Ors., 1995 Supp (3) SCC 179, the Supreme Court held (para.3) :
"As regards the first contention, we are afraid that the courts below have gone wrong in holding that it is not open to the defendant to amend his written statement under Order 6 Rule 17 CPC by taking a contrary stand than what was stated originally in the written statement. This is opposed to the settled law. It is open to a defendant to take even contrary stands or contradictory stands, thereby the cause of action is not in any manner affected. That will apply only to a case of the plaint being amended so as to introduce a new cause of action. Be that so."
In K. Raheja Constructions Ltd. v. Alliance Ministries & Ors., AIR 1995 SC 1768 their Lordships of the Supreme Court held (para.4) :
"It is seen that the permission for alienation is not a condition precedent to file the suit for specific performance. The decree of specific performance will always be subject to the condition to the grant of the permission by the competent authority. The petitioners having expressly admitted that the respondents have refused to abide by the terms of the contract, they should have asked for the relief for specific performance in the original suit itself. Having allowed the period of seven years elapsed from the date of filing of the suit, and the period of limitation being three years under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the grounds set out, would defeat the valuable right of limitation accrued to the respondent."
In Vishwambhar & Ors. v. Laxminarayan & Anr., (2001) 6 SCC 163, the Supreme Court held ( para.10) :
"From the averments of the plaint, it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstances, the suit for setting aside the transfers could be taken to have been filed on the date the amendment of the plaint was allowed and not earlier than that."
In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board & Ors., (2004) 3 SCC 392, their Lordships of the Supreme Court held (para.2):
"The law as regards permitting amendment to the plaint, is well settled. In L.J. Leach and Co. Ltd. v. Jardine Skinner and Co. it was held that the Court would as a rule decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of the application. But that is a factor to be taken into account in exercise of the discretion as to whether amendment should be ordered, and does not affect the power of the court to order it."6
In Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors., AIR 2006 SC 1647, their Lordships of the Supreme Court held:
"17. Order VI, Rule 17 consist of two parts whereas the first part is discretionary (may) and leaves it to the Court to order amendment of pleading. The second part is imperative (shall) and enjoins the Court to allow all amendments which are necessary for the purpose of determining the real question in controversy between the parties.
18. In our view, since the cause of action arose during the pendency of the suit, proposed amendment ought to have been granted because the basic structure of the suit has not changed and that there was merely change in the nature of relief claimed. We fail to understand if it is permissible for the appellants to file an independent suit, why the same relief which could be prayed for in the new suit cannot be permitted to be incorporated in the pending suit.
19.As discussed above, the real controversy test is the basic or cardinal test and it is the primary duty of the Court to decide whether such an amendment is necessary to decide the real dispute between the parties. if it is, the amendment will be allowed; if it is not, the amendment will be refused."
In Usha Balashaheb Swami & Ors v. Kiran Appaso Swami & Ors., 2007 (3) Supreme 582, their Lordships of the Supreme Court held (para.20):
"It is equally well settled principle that a prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings. The general principle that amendment of pleadings cannot be allowed so as to alter materially or substitute cause of action or the nature of claim applies to amendments to plaint. It has no counterpart in the principles relating to amendment of the written statement. Therefore, addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement would not be objectionable while adding, altering or substituting a new cause of action in the plaint may be objectionable."
In Vidyabai & Ors. v. Padmalatha & Anr., 2009 (1) Supreme 238, their Lordships of the Supreme Court held (para.14):
"It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed.
However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."
In Revajeetu Builders & Developers v. Narayanaswamy & Sons & Ors., 2009(7) Supreme 333, their Lordships of the Supreme Court held (para.67):
"On critically analyzing 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.7
(1) Whether the amendment sought is im-perative 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 multi-ple litigation; (5) Whether the proposed amendment con-stitutionally 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."
The provisions of R.17 of O.6 of the Code of Civil Procedure, 1908 are as follows:
"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 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."
The provisions of s.141 of the Code of Civil Procedure, 1908 are as follows:
"141. Miscellaneous proceedings.--The procedure provided in this Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation.--In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution."
The provisions of s.26 of the Bengal Medical Act, 1914 provide that an appeal shall lie to the state government from every decision of the council under s.17 or s.25; and that every such appeal shall be preferred within three months from the date of the council's decision. It is evident that there is no provision for condonation of delay by the state government.
The provisions of s.17 of the Bengal Medical Act, 1914 are as follows:
"17. Person possessing any of the qualifications referred to in the schedule entitled to be registered. - Every person who possesses any of the qualifications referred to in the schedule shall, subject to the provisions hereinafter contained, and on payment of such fee as may be prescribed in this behalf by regulation made under section 33, be entitled to have his name entered in the register of registered practitioners:
Provided that the Council may refuse to permit the registration of the name of any person--
(a) who has been sentenced by any Court for any non-bailable offence, such sentence not having been subsequently reversed or quashed, and such person's disqualification on account of such sentence not having been removed by an order which the State Government is hereby empowered to make, if it thinks fit, in this behalf; or 8
(b) whom the Council, after due inquiry (at which an opportunity has been given to him to be heard in his defence and to appear either in person or by counsel, vakil, pleader or attorney, and which may, in the discretion of the President, be held in camera), have found guilty, by a majority of two thirds of the members present and voting at the meeting, of infamous conduct in any professional respect."
The provisions of s.25 of the Bengal Medical Act, 1914 are as follows:
"25. Power of the Council to direct removal of names from register, and re-entry of names therein.- The Council may direct--
(a) that the name of any registered practitioner--
(i) who has been sentenced by any Court for any non-bailable offence, such sentence not having been subsequently reversed or quashed, and such person's disqualification on account of such sentence not having been removed by an order which the State Government is hereby empowered to make, if it thinks fit, in this behalf; or
(ii) whom the Council, after due inquiry in the same manner as provided in clause (b) of section 17 have found guilty, by a majority of two-thirds of the members present and voting at the meeting, of infamous conduct in any professional respect.
be removed from the register of registered practitioners or that the practitioner be warned, and
(b) that any name so removed be afterwards re-entered in the register."
The art.226 petition is dated July 10, 2003. It was admitted by an order dated July 22, 2003. It was taken up for final hearing first on August 9, 2005 when further hearing was adjourned, and it was again taken up for final hearing on August 16, 2005 when, over the course of hearing, Mr De sought adjournment on the ground that the petitioner would consider the question of filing an application for its amendment; and the prayer was allowed. The amendment application is dated January 9, 2006, and before taking it out, the petitioner had taken out an application for addition of party that was allowed by an order dated December 21, 2005. On these facts, I do not think it can be said that the application suffers from laches or unexplained inordinate delay.
If the application is hit by the provisions of the proviso to R.17 of O.6 of the Code of Civil Procedure, 1908, then there can be no doubt that in the absence of fulfillment of the requirements of the provisions, it will not be appropriate for this court to allow the amendments, even if they are otherwise found necessary. In view of the provisions of s.141 of the Code of Civil Procedure, 1908, the provisions of the Code do not apply to proceedings under art.226 of the Constitution of India. Hence I am unable to accept the argument that the mandatory provisions of the proviso to R.17 of 9 O.6 will apply to this case. The provisions do not apply, but there is no prohibition on applying them to proceedings under art.226.
Rule 53 of the rules made by this court in relation to petitions under art.226 of the constitution provides as follows:-
"53. Save and except as provided by these Rules and subject thereto, the provisions of the Code of Civil Procedure (Act V of 1908) in regard to suits shall be followed, as far as it can be made applicable, in all proceedings under Article 226 and nothing in these Rules shall be deemed to limit or otherwise affect the inherent power of this Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Courts."
Therefore, in view of the provisions of r.53 of the rules made by this court in relation to petitions under art.226 of the constitution, the provisions of the proviso to O.6, R.17 of the Code can be applied to this application. But the proviso cannot prevent this court from making an order allowing the amendments, if it is necessary for the ends of justice. For making an order under art.226 this court has derived its jurisdiction, power and authority from art.226; and hence what has not been prohibited by art.226 cannot be said to be prohibited because of the provisions of the proviso to R.17 of O.6 of the Code of Civil Procedure, 1908.
The provisions should be, not must be, followed only for examining the effect of delay and laches, if any, in applying for the amendments, and the discretion is to be exercised weighing the loss and prejudice, if any, caused by such delay and laches. They are not relevant to the question of jurisdiction, power or authority of the writ court. I find no reason to say that they will not permit the petitioner to amend his art.226 petition, if it is found that the amendments are necessary for determining the real questions in controversy between the parties.
From the case stated in the petition it is evident that the petitioner is actually aggrieved by the decision of the council dated April 17, 2003 turning down his complaint against the sixth and seventh respondents. In para.18 he has stated that the council rejected his complaint without disclosing the grounds for rejection. He wanted to lodge an appeal and for the purpose he requested the council to supply him the report and the documents considering which the decision dated April 17, 2003 was given. His immediate cause of action on which the petition was filed was in the council's refusal to supply him the report and the papers on the basis whereof the decision dated April 17, 2003 had been given.
10His right to action actually arose from the council's decision dated April 17, 2003, and rejection of his complaint by this decision, - an integral part of his cause of action on which he took out the petition. For getting relief in the petition he was required to plead and prove that his complaint against the sixth and seventh respondents had been rejected by the council by giving a final decision. He actually pleaded this fact in para.18 and produced a copy of the decision of the council dated April 17, 2003 with the petition. True it is that in the petition he did not specifically claim a relief against the decision of the council dated April 17, 2003. But it cannot be said that since the council's decision is not before the court, this court cannot interfere with it.
On these facts, I am unable to agree with counsel for the respondents that by seeking to incorporate the facts, grounds and prayers in the petition the petitioner has actually sought to change the nature and character of his petition. I am, therefore, of the view that the amendment application should be allowed.
For these reasons, the amendment application is allowed. The duly verified amended petition shall be field within a week after the vacation; additional opposition, if any, shall be filed within a fortnight thereafter, and additional reply, if any, shall be filed by a fortnight thereafter. Liberty to mention the petition for final hearing. No costs. Certified xerox according to law.
(Jayanta Kumar Biswas, J.)