Gauhati High Court
Prasana Kumar Keshan vs Pradip Gogoi on 3 August, 2018
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
C.R.P. No. 332 OF 2016
Sri Prasana Kumar Keshan
... Petitioner
-Versus-
Sri Pradip Gogoi
..Respondent
BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA For the petitioner : Mr. GN Sahewalla, Sr.Adv.
Md. Aslam, Mr. D. Senapati, Ms.B. Sarma, Advocates.
For the respondent : Mr. TJ Mahanta, Sr. Adv.
Date of hearing : 20.07.2017
Date of Judgment : 03.08.2017
JUDGMENT AND ORDER (CAV)
Heard Mr. GN Sahewalla, the learned senior counsel for the petitioner as well as Mr. TJ Mahanta, the learned senior counsel for the respondent.
2. The petitioner is a tenant of the respondent in respect of a land measuring 3.5 Kathas together with structures standing thereon claiming to be the tenant since the time of his forefathers and in possession of the suit premises since the year 1939.
CRP No.332/2016 Page 1 of 123. The petitioner filed a suit being Title Suit No.50/2014 in the court of learned Munsiff No.1 at Jorhat, stating therein that as per the agreement, the petitioner had been paying the agreed annual rent. It was stated that the petitioner had received a phone call from the respondent on 01.09.2014 asking him to come to Jorhat for discussion. On 06.09.2014 when he went to meet the respondent at the agreed time at about 1:00 PM, 4/5 youths with 3 unknown ladies locked the plaintiff in the room and made him signed some document and stamp papers without allowing him to read those documents. Facing threat, the petitioner signed the documents to vacate the suit premises immediately. On 07.09.2014, the petitioner lodged an FIR and Jorhat PS Case No.1531/2014 was registered under Section 384/34 IPC against the respondents and others. Upon being threatened with eviction from the suit premises on 07.09.2014, the petitioner filed a suit i.e., Title Suit No.50/2014 with the prayer for declaring him as a tenant and for declaration that the petitioner/plaintiff has the right, interest and possession over the suit premises as a tenant and the respondent/defendant has not right to evict him from the suit premises without following the procedure of law and for a permanent injunction and other reliefs.
4. The respondent/defendant filed the written statement as well as counter claim, claiming the allegations made against him to be false and prayed for dismissal of the suit and for declaring the respondent/defendant having joint right, title, interest and possession over the Schedule -1 and Schedule -2 lands together with other legal heirs of late Lakheswar Gogoi and for declaring that the petitioner was never the tenant of the respondents, and for declaration that the petitioner had no right, title, interest and possession as tenant over the Schedule -1 and Schedule-2 lands and also for permanent injunction restraining the petitioner and his men, workers, agents, caretakers, family members etc. from entering into the Schedule-1 land and not to disturb the peaceful possession of the respondent/defendant and other legal heirs of Late Lakheswar Gogoi over the suit land.
CRP No.332/2016 Page 2 of 125. In the meanwhile, the learned Munsiff No.1, Jorhat by an order dated 19.09.2014 passed in Misc.(J) Case No.81/2014, restrained the respondent from taking forceful possession of the tenanted premises from the petitioner till disposal of the suit. Thereafter, the respondent filed a petition seeking leave to file additional written statement under Order VIII Rule 9 read with Section 151 CPC and the same was registered as Misc.(J) Case No.81/2014. The learned Munsiff No.1, Jorhat vide order dated 03.03.2015 rejected the prayer for filing additional written statement and, as such, the Misc.(J) Case No.81/2014 was dismissed.
6. Thereafter, the respondent filed an application for amendment of the written statement under Order VI Rule 17 CPC. The petitioner filed his written objection and the learned Munsiff No.1, Jorhat, vide order dated 12.07.2016 allowed the proposed amendment and thereby allowed the Misc.(J) Case No.73/2015. The said order is under challenge in this application.
7. The learned senior counsel for the petitioner has submitted that the amendment which was sought for vide Misc.(J) Case No.73/2015 could not have been allowed because of the dismissal of Misc.(J) Case No.81/2014, which was an application under Order VIII Rule 9 read with 151 CPC. It is further submitted that in the Misc.(J) Case No.81/2014, the additional written statement was sought to be filed by the respondent because his counsel who had drafted the written statement and counter claim had also committed a mistake and because of the hurry shown and projected by his counsel, the petitioner could not read out the written statement and counter claim properly and therefore, he failed to state material facts. The learned senior counsel for the petitioner has referred to paragraph-6 of Misc.(J) Case No.81/2014 to show that there was an admission that the defendants did not give the required or necessary information to the counsel due to inadvertence and it was also mentioned therein that the written statement and the counter claim was not read properly, which ought to have CRP No.332/2016 Page 3 of 12 been done. It is submitted that the said ground was not accepted by the learned trial court while rejecting the application for filing additional written statement and the subsequent Misc.(J) Case No.73/2015 for amendment of the plaint was made on the same ground. It is further submitted that in view of the same, the subsequent amendment was barred by the principle of res- judicata and/or constructive res-judicata.
8. It is further submitted by the learned Senior Counsel for the petitioner that the amendments cannot be permitted for the purpose of withdrawing an admission made in the written statement. In this regard, he relies on the case of Uttam Chand Kothari vs. Gauri Shankar Jalan and others, 2007 (1) GLT 37.
9. Per contra, the learned senior counsel for the respondent has argued in support of the impugned order. He submits that the first application was under Order VIII Rule 9 CPC which is for filing subsequent pleadings. It is submitted that an order passed for refusing leave to file additional written statement cannot be treated to be a bar for filing an application for amendment of the pleadings under Order VI Rule 17 CPC. It is further submitted that in the present case, the trial was yet to commence and therefore, there was no legal bar under the provisions of Order VI Rule 17 to amend the plaint. It is further submitted that the provision of Order VI Rule 17 CPC is required to be construed liberally. In the present case, amendment was required in the written statement. It is submitted that the yardstick for permitting amendment of the plaint is somewhat more stringent, but when it comes to amendment of the written statement, the approach of the court ought to be liberal in allowing the amendment. It is further submitted that the amendment was necessary for the purpose of determining the real question of controversy between the parties. The learned Senior Counsel for the respondent submits that the facts of the case of Uttam Chand Kothari (supra) does not apply to the present fact situation. It is explained that in the case of Uttam Chand Kothari (supra), the petitioner/tenant has made an admission CRP No.332/2016 Page 4 of 12 which was sought to be withdrawn by way of amendment and it is on that factual circumstances that the judgment was passed in the said case. However, in the present case in hand, the facts situation is just the reverse. In the original written statement, the respondent /defendant had denied that the petitioner was tenant under him and denied the existence of any agreement. But by virtue of the proposed amendment, the respondent has admitted the tenancy and the agreement referred to in the plaint was also admitted. Therefore, this is not a case where the petitioner would be dislodged if the amendment of the plaint was allowed, rather if the proposed amendment was allowed then the effect of the same would be that the respondent would be admitting the tenancy which was denied earlier.
10. Having heard the learned Senior Counsel for the parties and on perusal of the materials on record, it is seen that the application for leave to file additional written statement and the ground for filing the application for amendment are more or less common. The relevant pargarph-6 & 7 of the Misc.(J) Case No.81/2014 are quoted below:
"6. That the Advocate who drafted the written statement -cum-counter claim for and on behalf of the defendant committed mistake in writing - "the written statement -cum-counter claim and the relief sought thereof. " The defendant indeed did not give required, and necessary instructions to the Lawyer due to inadvertence. But because of hurry as shown and projected by the Lawyer, the defendant could read the written statement -cum- counter claim properly which ought to have been done. So, the Lawyer could not present the real and true fact relating to the tenancy with other aspect as stated herein above; and failed to plead/state material facts including necessary particulars for adjudication of the suit/case for ends of justice.
7. That the replication is for subsequent pleadings by way to additional written statement sought to be filed, may not be treated as nature of amendment of written statement u/r 17 order 6 of code civil procedure, 1908. In fact, by this Addl.Written statement sought to be filed may not be treated as new CRP No.332/2016 Page 5 of 12 case inconsistent with the earlier written statement. As such, under the circumstances, the defendant by finding no other alternative to focus the facts relating to the defendant's case and for bringing admitted/facts (by the plaintiff), filed the petition for permission for the hon'ble court to file/grant leave to file additional written statement u/o VIII rule 9 (subsequent pleadings)."
11. The ground for filing Misc.(J) Case No.73/2015 is also quoted below, the relevant paragraphs are- 2,3 & 4:
"2. That in the said written statement cum-counter claim was seemed to be not drafted properly in the context of the case of the defendant, but the drafting was done from the side of the Advocate drafter without understanding the real case of the defendant, admitting may points and bringing certain facts, not necessary to plead in the written statement. The said facts which are not pertinent to the real facts of the case of the defendant were pleaded without any instruction but the drafter substantialize the same in the said unnecessary contents in the pleading without understanding the facts and Laws relating to the what matter, indeed, required to be drafted in the written statement. In this, it is further stated that the drafter of the written statement also, by virtue of innocence and ignorance, made the case of the defendant clumsy i.e. difficult to handle or use and also proceed with the case in the right direction which the facts are stand to plead the case in right direction. Those facts constituting the almost all matters were remained in the pleading without any real basis and also suffer from wrong admission.
3. That the defendant being an old and ailing persons, though put his signature on the written statement, yet because of his difficulties i.e. physical as well as partial absence of prompt recollection of the fact from the study, could not understand the facts relating to his written statement- whether as per the facts, instruction - given to the drafter Advocate. Hence, at this moment, the amendment of written statement (pleading became imperative to focus and convey the truth, real facts on the basis of the defendant is CRP No.332/2016 Page 6 of 12 required to present his case before the court with existing facts and basis for relief; otherwise i.e. in absence of amendment of the written statement, the defendant would suffer from difficulties in running, proceeding with his case. So that of the same, the written statement need to be corrected by amendment of the written statement. In this process of seeking amendment of written statement (pleadings), the defendant seeks to only elaborate and clarify the earlier inadvertence and confusion made in written statement. In this respect, there were some admission made in the earlier written statement which also required explanation for the purpose of amendment of written statement etc. etc.
3. That, it is further stated that the earlier written statement suffers from certain inconsistency features and real facts required to be added and pleaded in the amendment of written statement. The said amendment of written statement, when issues are not framed, it would not cause injustice or irreparable loss to the plaintiff or raise any new case or new cause of action."
12. The learned trial court while considering the proposed amendment observed that in the present case, the defendants by the proposed amendment is not withdrawing any admission but on the other hand he was admitting many facts stated by the plaintiff, hence, the court found that no prejudice was being caused to the defendant as he did not defeat any legal rights that had accrued in favour of the plaintiff and the proposed amendment was also pertinent to the real question of controversy in the suit. It was further held that as the proposed amendment does not displace the plaintiff's case but by such amendment, the tenancy agreement which was earlier denied was admitted. The amendment of such nature would be very much necessary for determining the controversy between the parties. The learned court below further observed that it is also seen that in the original written statement, there was no admission made in favour of the plaintiff and therefore, the amendment was allowed.
CRP No.332/2016 Page 7 of 1213. It is no longer res-integra that amendment which is necessary for the purpose of determining the controversy between the parties can be permitted to be made. If one needs an authority on the same, the case of Sushil Kumar Jain vs. Manoj Kumar and others, (2009) 14 SCC 38, may be referred to. In the said case, the Hon'ble Supreme Court has referred to the case of Panchdeo Narayan Srivastava vs. Km. Jyoti Sahay, (1984) Supp 1 SCC 594, Baldev Singh and others vs. Monohar Singh and another, (2006) 6 SCC 498 and Usha Balasaheb Swami and others vs. Kiran Appaswami and others , (2007) 5 SCC 602.
14. Therefore, it is now required to be seen if the rejection of the application for leave to file additional written statement can be constituted to prohibit the application for amendment under Order VI Rule 17 CPC. In this regard, the provisions of Section 11 CPC is quoted below:
11. Res judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit' between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II : For the purposes of this section, the competence of a court shall be determined irrespective of any provisions as to a right of appeal from the decision of such court.
Explanation Ill: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
CRP No.332/2016 Page 8 of 12Explanation V: Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII: The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII :An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent Suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been Subsequently raised."
15. In the opinion of this Court, when the application for leave to file additional written statement was refused, not only the trial court had gone into the issue of instructions given to the counsel by the respondent but also considered the fact that the respondents intended to take entirely different stand to that of his stand taken earlier. In the order dated 30.03.2016 passed in Misc.(J) Case No.81/2014, the learned trial court has specifically referred that 'from the copy it reveals that this time the defendant has specifically admitted that plaintiff was a tenant under their father late Lokeswar Gogoi and that there was a tenancy agreement between the Lokeswar Gogoi as landlord and the plaintiff on and from 01.03.1983......'. Situated thus, it appears that the defendants had tried to bring on record the tenancy vide Tenancy Agreement executed by the father of the plaintiffs and has taken the plea that the area mentioned in the tenancy agreement was not in consonance with that of the suit land and premises as stated by the plaintiff and thus, the defendant had projected a dual stand which is CRP No.332/2016 Page 9 of 12 inconsistent with that of his earlier pleadings. It was further observed - "that apart, the stand proposed to be taken by the defendant by filing additional written statement would also be inconsistent with the prayer made in his counter claim, wherein he had prayed for declaration that the plaintiff is not a tenant under him."
16. The same ground which was rejected earlier by the order dated 03.03.2015 is sought to be introduced by way of amendment under Order VI Rule 17 CPC. Thus, in the opinion of this Court, it normally falls within the principles of res-judicata which prohibits that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties. It is a well settled proposition of law that the principle of res-judicata applies also as between two stages in the same litigation. In the present case in hand, the respondents had accepted the order dated 03.03.2015 passed in Misc.(J) Case No.81/2014 and the said order had attained finality. Therefore, the same issue cannot be permitted to be re-agitated at a subsequent stage of the same proceeding. In this regard, the case of - (1) U.P. State Road Transport Corporation vs. State of U.P., (2005) 1 SCC 444 (paragraph-11) and (2) C.V. Rajendran and another vs. N.M. Muhammed Kunhi, (2002) 7 SCC 447 (paragraph- 6) may be reproduced below.
In the case of U.P. State Road Transport Corporation vs. State of U.P., (2005) 1 SCC 444, the Hon'ble Supreme Court held in paragraph-11 that-
"11. The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of Code of Civil Procedure in this respect. Res judicata applies also as between two stages in the same litigation to this extent that a court, whether the trial court or a higher court having at an earlier stage decided a matter in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the same CRP No.332/2016 Page 10 of 12 proceedings. (See Satyadhan vs. Smt. Deorajin Devi AIR 1960 SC 941)."
In the case of C.V. Rajendran and another vs. N.M. Muhammed Kunhi, (2002) 7 SCC 447, the Hon'ble Apex Court held in paragraph-6 that-
"6. In the light of the above discussion we hold that as the question whether Section 15 of the Act bars the present eviction petition, was decided against the appellants by the Appellate Authority at the earlier stage of suit and it was allowed to become final, it is not open to the appellants to re- agitate the same at the subsequent stage of the suit. In this view of the matter, we do not find any illegality in the order under appeal to warrant any interference."
17. This Court is conscious that amendment of the plaint can be allowed, permitting withdrawal of admission. The Hon'ble Supreme Court in the case of Panchdeo Deo Narayan (supra) had held on the facts as stated therein that - "we find no justification for the High Court interfering with the order made by the learned trial court granting the application for amendment to the plaint. We accordingly allow this appeal and set aside the judgment of the High Court restoring the order of the learned trial Judge". However, as seen in the present case that the matter which has formed a part of the application for amendment was raised at the former stage of the said proceeding when the respondents had filed an application for leave to file additional written statement and the learned trial court after considering the facts stated therein, had rejected the prayer for filing additional written statement. Therefore, notwithstanding that by an amendment, contradictory stand was permitted in the case of Sushil Kumar Jain (supra), but in the facts and circumstances of the present case, on finding that the issue was raised earlier in form of an application for leave under Order VIII Rule 9 CPC, the application for amendment is found to be hit by the principle of res-judicata, in view of the decision of the Hon'ble Apex Court in the case of U.P. State Transport Corporation (supra). Accordingly, this Court is inclined to hold that the learned trial court had committed jurisdictional error in allowing the prayer CRP No.332/2016 Page 11 of 12 for amendment, which in the opinion of this Court is barred under the principles of Section 11 CPC. Therefore, the revision stands allowed.
18. Resultantly, the impugned order dated 12.07.2016 passed by the learned Munsiff No.1, Jorhat in Misc.(J) Case No.73/2015 arising out of Title Suit No.50/2014 is hereby set aside. Parties are left to bear their own costs.
19. Both the parties are directed to appear before the learned Court of Munsiff No.1, Jorhat on 21.08.2017 without any further notice of appearance and by producing a certified copy of this order, shall seek further instructions from the said learned court.
JUDGE MKS CRP No.332/2016 Page 12 of 12