Calcutta High Court (Appellete Side)
Ac Md. Kamruddin vs Khurshida Bibi & Ors on 8 July, 2011
Author: Harish Tandon
Bench: Harish Tandon
Sl/ 08.7.11 C.O. 1987 of 2010
165
ac Md. Kamruddin
-vs-
Khurshida Bibi & Ors
Mr. Tarak Nath Halder ... For Petitioner
Mr. Siva Prasad Ghosh ... For Opposite Parties
This revisional application is directed against Order No. 17 dated 17th February 2010 passed by the Civil Judge, (Senior Division), Sealdah in Title Suit No. 7 of 2009 by which an application for amendment, filed by the defendant/appellant, is rejected.
The plaintiff/opposite party instituted an eviction suit, being Title Suit No. 38 of 1996, on the ground of default and own use and occupation. In paragraph 4 of the plaint, the plaintiff/opposite party categorically asserted that they are the absolute owners of the suit property.
In the written statement, the defendant/ petitioner evasively denied such statement in contending that the plaintiff is not the owner of the property. No where in the written statement it was ever asserted by the defendant/petitioner that apart from him there are other heirs who have inherited the said tenancy. In paragraph 12 of the written statement, it has been categorically stated by the defendant/petitioner that he is still the tenant of the suit property.
The parties adduced evidence. No where in the evidence the Court could find out that any case of non-joinder of necessary party is made out. After the suit was decreed, the defendant/petitioner assailed the same in appeal.
Before the appellate Court, the defendant/petitioner filed an application for amendment seeking to incorporate certain averments relating to the title of the plaintiff/opposite party as well as a ground of non-joinder of necessary party as one of the heirs of the original tenant has been left out. The trial Court found such amendment would introduce a new case and ultimately rejected the said application for amendment.
Mr. Halder, learned Advocate appearing for the petitioner, vehemently argues that if the Court finds it necessary for effective adjudication of the dispute in the suit or appeal, the Court should allow such amendment. He further submits that if no prejudice is caused to the plaintiff/opposite party and he can be compensated by imposing cost, the Court should readily allow such amendment.
Mr. Halder advances an argument, before me that in absence of any one of the heirs of the contractual tenant being impleaded as a party in the suit for eviction, such suit is not competent and the decree is not sustainable. In support of his contention, he relied upon judgments of the Apex Court in the case of Textile Association (India) Bombay Unit -vs- Balmohan Gopal Kurup & Anr., reported in AIR 1990 SC 2053 and in the case of Kumar Jagdish Chandra Sinha & Ors. -vs- Eileen K. Patricia D'Rozarie (Mrs), reported in (1995) 1 SCC 164 and a Division Bench judgment of this Court in the case of Jawaharlal Saha & Ors -vs- Pradip Saha & Ors., reported in 2006 (1) CHN 513.
It is further contended by Mr. Halder that Court should not look into the merit of the averments sought to be incorporated by way of amendment at the time of consideration of an application for amendment and places reliance upon the judgment of the Apex Court in the case of Rajesh Kumar Aggarwal & Ors. -vs- K.K. Modi & Ors., reported in AIR 2006 SC 1647. By contending that the Court should allow amendment of the written statement by which an additional ground of defence is sought to be taken by the defendant, reliance is placed on a judgment of the Apex Court in the case of B.K.N. Pillai -vs- V.P. Pillai & Anr., reported in AIR 2000 SC 614.
Lastly, it is contended that the Court should adopt a linient approach while considering an application for amendment which is necessary by palcing reliance upon the judgments of the Apex Court in the case of Ishwardas -vs- State of Madhya Pradesh & Ors., reported in AIR 1979 SC 551 and Jai Jai Ram Manohar Lal -vs- National Building Material Supply, Gurgaon, reported in AIR 1969 SC 1267.
Mr. Ghosh, learned Advocate appearing for the plaintiff/opposite parties, submits that the defendant/petitioner is trying to withdraw the admission made in the written statement by way of amendment, which is not permissible. He further submits that the defendant cannot be allowed to take a new ground before the appellate Court.
Having considered the respective submissions, it is undisputed that the
defendant/petitioner has not taken any ground of non- joinder of necessary party in the written statement; rather, on perusal of the written statement it appears to this Court that an express admission is made by the defendant/petitioner that he is still a tenant in respect of the suit property.
It is no doubt true that the Court should not look into the veracity and/or merit of the averments sought to be incorporated by way of amendment at the time of considering an application for amendment, but the Court should also consider whether such amendment is an outcome of mala fide and taking away the accrued right of the adversary.
The amendment sought to be made at the appellate stage should be considered strictly as one of the parameters, apart from others, is that the party applying for amendment should satisfy the Court as to why such amendment could not be brought before the trial Court. On perusal of the application for amendment, I am afraid, there is no explanation offered by the defendant/petitioner as to why such amendment could not be taken up before the trial Court.
The defendant/petitioner has invited this Court to enter into the merit of the averment sought to be incorporated by way of amendment by contending that if any one of the heirs is left out, the suit for eviction shall fail. The judgment rendered in case of Textile Association (India) Bombay Unit (supra) was considered by the Apex Court in the case of Suraiya Begum (Mst) -vs- Mohd. Usman, reported in (1991) 3 SCC 114, where it has been held that the said judgment was delivered taking into consideration the facts and circumstances of the said case. The Division Bench, in the case of Jawaharlal Saha & Ors. (supra) relied upon the judgment of the Textile Association (India) Bombay Unit (supra) to be a binding precedence as the said judgment was rendered by a Three Judges Bench and the judgment delivered in the case of Suraiya Begum (supra) was rendered by a Two Judges Bench.
Subsequently, the Three Judges Bench of the Apex Court, in the case of Shakuntala Vasant Pahadi & Ors. -vs- Purushottam Vasant Pethe & Ors., reported in (2007) 3 SCC 123, held that if an original tenant dies leaving behind more than one heir, it is not necessary under law to implead all the heirs in a suit for eviction but the same can be filed only against one of the heirs who could have represented interest of the deceased tenant.
If two contrary judgments of equal strength are operating the field, the Court may rely upon the judgment, which is more apt in the facts and circumstances of the case.
Furthermore, Five Judges' Bench of the Supreme Court, in the case of N.K. Mohd. Sulaiman Sahib
-vs- N.C. Mohd. Ismail Saheb & Others, reported in AIR 1066 SC 792 has laid down that a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record in these words :
"Ordinarily the Court does not regard a decree binding upon a person who was not impleaded eo nomine in the action. But to that rule there are certain recognised exceptions. Whereby the personal law governing the absent heir the heir impleaded represents his interest in the estate of the deceased, there is yet another exception which is evolved in the larger interest of administration of justice. If there be a debt justly due and no prejudice is shown to the absent heir, the decree in action were the plaintiff has bona fide enquiry impleaded all the heirs known to him will ordinarily be held binding upon all persons interested in the estate. The Court will undoubtedly investigate, if invited, whether the decree was obtained by fraud, collusion or other means intended to over-reach the Court. The Court will also enquire whether there was a real context in the suit, and may for that purpose ascertain whether was any special defence which the absent defendant could put forward, but which was not put forward. Where however, on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle applies to all parties irrespective of their religious persuasion".
I find that the judgment delivered in the case of Shakuntala Vasant Pahadi & Ors. (supra), which is the later judgment of the Apex Court, is compatible to the facts of the instant case. It is no doubt true that one of the heirs is competent to represent the interest of the tenant. If the other heir is impleaded, he cannot have any better defence than the defence taken by the other heir. This Court is also conscience of the situation where the plea of fraud and/or of like nature is taken by a non impleading heir, in such event, the left out heir has a right to intervene which however is not the case in the instant case. Thus, I do not find any merit in the contention of the petitioner about non-impleadment of one of the heirs in the suit for eviction.
Court should be more liberal while considering an application for amendment of written
statement, as, consideration for dealing the amendment of a plaint, differs from that of amendment in a written statement. The amendment which are necessary for effective adjudication of the disputes should be allowed by the Court if the Court finds that the same would not cause any prejudice to the other side or take away the accrued right.
As indicated above, the defendant/petitioner could not satisfy the Court as to what prevented him to take out such application for amendment before the trial Court. Even the explanation, which has been offered, is not at all satisfactory. As has been held in the case of Ishwardas (supra) that there is no impediment or bar on the appellate Court permitting amendment of the pleading but while allowing the amendment, one of the circumstances, which should be taken into consideration before the amendment is granted, is the delay in making the application, seeking such amendment, and if such application for amendment is made before the appellate forum, reason, as to why it was not sought for before the trial Court, should be assigned.
The defendant/petitioner has made an evasive denial in the written statement. Furthermore, the defendant/petitioner categorically asserted to be the tenant in respect of the suit property. By way of an amendment, the defendant/petitioner cannot contend that he is not the only tenant; there are others too. The trial Court has rightly found that such an admission cannot be withdrawn by an amendment of pleading. Thus, I do not find any illegality or infirmity in the impugned order.
The application of amendment, taken out by the petitioner, is a smack of mala fide and has been brought to unnecessarily drag and delay the matter. Furthermore, the defendant/petitioner has already suffered a decree for eviction and such a decree is being delayed from being executed in an appeal where an application for amendment has been taken out so as to put fetter upon the appellate Court to proceed with the hearing of the said appeal.
The revisional application is, therefore, dismissed. There shall, however, be no order as to costs.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis. (Harish Tandon, J.)