Calcutta High Court
Ramendranath Banerjee vs Pradip Kumar Sen on 10 June, 2003
Equivalent citations: (2004)1CALLT151(HC)
Author: S.K. Mukherjee
Bench: Subhro Kamal Mukherjee
JUDGMENT S.K. Mukherjee, J.
1. This is an application under Article 227 of the Constitution of India by the defendant/appellant challenging order No. 9 dated April 4, 2003 passed by Shri Amitabha Das, learned Additional District Judge, Second Court at Alipore, District: South 24 Parganas in title Appeal No. 162 of 2002.
2. The plaintiff, who is the opposite party in this revisional application, instituted Title suit No. 59 of 1993 in the Court of the learned Civil Judge (Junior Division), 4th Court at Alipore for ejectment, recovery of arrears of rent and damages. The said suit was filed inter alia, on the ground of reasonable requirement. The said suit was transferred to the Court of the learned Civil Judge (Junior Division), Second Court at Alipore and was renumbered as Title Suit No. 105 of 2001.
3. By judgment and decree dated March 15, 2002 the learned trial judge decreed the suit on contest without, however, any order as to costs. The learned judge, inter alia, held that the plaintiff was able to establish his case of reasonable requirement and as such he was entitled to get a decree for recovery of khas possession in respect of suit property.
4. The defendant preferred title appeal No. 162 of 2002 in the Court of the learned District Judge, District; South 24 Parganas. The said appeal was eventually transferred to the Court of the learned Additional District Judge, Second Court at Alipore, District: South 24 Parganas.
5. On February 11, 2003 the defendant/appellant filed an application under Order 6, Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of his written statement. The defendant alleged in the application for amendment that the plaintiffs elder brother, Gautam Sen, purchased a single storied building with land adjacent thereto at premises No. 40 Chakraberla Road (South), Calcutta-25 from one Biren Banerjee while the suit was pending in the Court below. Ultimately, however, he transferred the suit premises in the year 2002. The said elder brother of the plaintiff did not shift to the said premises with his wife in order to create an artificial need to sustain the case of the plaintiff in the suit. It was alleged that the son of the plaintiff, aged about 25 years, has been frequently visiting his mother, who was the first wife of the plaintiff. The first wife of the plaintiff has been residing in an accommodation near Harinavi bus stand. The said son of the plaintiff occasionally has been staying with his mother, Shrimati Rubi Sen, in her said accommodation. Therefore, the allegation that the said son of the plaintiff has been looked after by the elder brother of the plaintiff and his wife has been untrue. The relation between the second wife of the plaintiff and the mother of the plaintiff has been strained and owing to such aforesaid reason, a plaintiff has been obliged to stay away from the suit house in a separate accommodation with his second wife. The son of the plaintiff has rarely been visiting the plaintiff in the said rented accommodation.
6. The plaintiff/opposite party contested the said application by filing his written objection.
7. By order No. 9 dated April 4, 2003 the learned Additional District Judge rejected the said application for amendment of the written statement holding, inter alia, that as the premises No. 40 Chakraberia Road (South) has already been sold by the elder brother of the plaintiff, it was useless to bring those facts on record at this stage. The learned Additional District Judge further observed: "That apart, Rule 17 of Order 6 has been totally omitted from the Code of Civil Procedure by amending Acts of 1999 and 2002. Now no amendment of the pleadings can be allowed at any stage, particularly at the hearing stage."
8. It is a matter of regret that the learned Additional District Judge made those observations without looking into the provisions of the Code of Civil Procedure (Amendment) Act, 1999 and the Code of Civil Procedure (Amendment) Act of 2002. The aforesaid Acts came into force with effect from July 1, 2002 in view of the notifications issued by the Central Government being Nos. S.O. 603(E) and S.O. 604(E) both dated June 6, 2002. Under Section 16(iii) of the Code of Civil Procedure (Amendment) Act of 1999, Rules 16 and 17 in Order 6 in the first schedule of the Code of Civil Procedure, 1908 were omitted. However, before the said provisions could come into force, the legislature passed the Code of Civil Procedure (Amendment) Act, 2002. Under Section 7 of the said Act of 2002 in the first schedule of the Code of Civil Procedure, 1908, in Order 6, for Rules 17 and 18 (as they stood immediately before their omission by Clause (iii) of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999, the following rules have been substituted:
"17. Amendment of pleadings.--The Court may at any stage of the proceeding 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 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.
18. Failure to amend after Order.--If a party who has obtained an order for leave to amend does not amend accordingly within the time limited for that purpose by the order, or if no time is hereby limited then within fourteen days from the date pf the order, he shall not be permitted to amend after the expiration of such limited time as aforesaid or of such fourteen days, at the case may be, unless the time is extended by the Court."
9. Under Section 16(2)(b) it is provided that the provisions of the rules 5, 15, 17 and 18 of Order 6 of the first schedule as omitted or, as the case may be, inserted OP substituted by Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and by Section 7 of the Code of Civil Procedure (Amendment) Act, 2002 should not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of the Code of Civil Perocedure (Amendment) Act,2002. I have already noted hereinabove that both the amending Acts came into force with effect from July 1, 2002.
10. Therefore, the findings of the learned judge in the lower appellate Court that Rules 17 of Order 6 has been totally omitted from the Code of Civil Procedure, 1908 by amending Acts of 1999 and 2002 are wholly erroneous and based on total non-application of mind and it is not clear that how far the mind of the learned judge, while considering the said application for amendment of the written statement, was influenced by such misconception of law. The suit was filed long before the commencement of the Code of Civil Procedure (Amendment) Act, 1999 and Code of Civil Procedure (Amendment) Act, 2002 and, therefore, in view of the provisions of Section 16(2) (b) of the said Act of 2002 the amended provisions shall not apply.
11. I, therefore, set aside the order impugned and remit the application for amendment to the lower Appellate Court for decision afresh in accordance with law. I direct the learned Judge in the lower appellate Court to dispose of the said application for amendment of the written statement filed by the defendant/appellant on March 11, 2003 positively by July 31, 2003. The aforesaid time limit is preemptory and mandatory and I authorize the learned judge in the lower appellate Court to refuse any prayer of unnecessary adjournments to either of the parties.
12. By way of abundant caution I made it clear that I have no occasion to go into the merits of the said application for amendment of the written statement and all points are kept open to be decided by the learned judge on merits and in accordance with law.
The revisional application is, thus, allowed, without however, any order as to costs.
I request the learned Registrar General of this Court to communicate a copy of this order to the learned judge concerned wherever he is posted now so that he shuns the habit of writing his orders without looking into the relevant provisions of the statute.
Xerox certified copy of this order, if applied for, is to be supplied on urgent basis.