Calcutta High Court
Sri Santosh Kumar Hui vs Sri Prakash Kumar Palit And Others on 4 July, 1995
Equivalent citations: AIR1995CAL381, AIR 1995 CALCUTTA 381
Author: Basudeve Panigrahi
Bench: Basudeve Panigrahi
ORDER
1. This petition, which arises out of an application under Article 227 of the Constitution of India, is directed against an order dated 14-3-1992 in C.R. 61 of 1991 of the Additional District Judge, Hooghly allowing the revision rejecting the prayer for amendment of the pleading filed by the petitioner.
2. The petitioner (hereinafter referred to as plaintiff) filed a suit for specific performance of contract in Title Suit No. 135/87 before the 1st Court of learned Munsif at Chinsurah, Hooghly against the respondent/ opposite party (hereinafter referred to as defendant) inter alia, for compensation by way of interest at the rate of 15% on Rs. 1,000/-from 2nd February, 1986 together with other consequential reliefs. It is stated by the plaintiff that the defendant/opposite party No. 1 had his land adjacent to resi-
dential house of the plaintiff on the North of the suit property. Since the defendant No. 1 was residing at a far-off place intended to sell the suit property. It is stated by the plaintiff that since he is the adjoining owner of disputed plot expressed his desire to purchase the same at Rs. 9,500/- which was agreed to by the defendant. The plaintiff paid a sum of Rs. 1,000/- as advance or earnest money towards the purchase of the suit property. It was further agreed between the plaintiff and the defendant No. 1 that the latter would receive the balance consideration of Rs. 8,500/- at the time of the registration of the saled deed and the registration of the document would be completed within a year after obtaining necessary permission from the Urban Land (Ceiling Regulation) Authority. The defendant No. 1 also delivered possession of the suit property to the plaintiff who was the prospective purchaser.
3. In or about June 1987, the plaintiff heard a rumour in the village that there was a clandestine talk between the defendant No. 1 and defendant No. 2 and the latter agreed to purchase the same. The plaintiff immediately after having come to know about such proposal approached the defendant No. 2 with the mediation of one Sri Ajit Banerjee to dissuade him from purchasing the same inasmuch as there was a subsisting contract between the defendant No. 1 and plaintiff for the purchase of the suit land. But the defendant No. 2 seemed to be obstinate and was bent upon to purchase the same at a consideration of Rs. 15,000/-. Therefore, the plaintiff has filed the suit for specific performance of contract.
4. Both the defendants entered appearance before the learned Trial Court. The defendant No. 1 advanced a plea that the plaintiff being an adjacent owner had an greedy eye on the suit property. There was no proposal farless an agreement for sale of the suit land to the plaintiff. The defendant No. 2 had already purchased the suit properties under two registered sale deeds dated 25-9-1986 and 29 October, 1986 and took delivery of the possession from the defendant No. I. Therefore, the suit at the behest of the plaintiff is not maintainable which is of speculative nature. During the pendency of the suit, the plaintiff filed an amendment petition under Order 6, Rule 17 of the Code of Civil Procedure on 22nd February, 1990. In the said petition the plaintiff stated to have come to know about the sale deed executed in favour of defendant No. 2 by the defendant No. 1 only after filing of the written statement. 'Since the plaintiff is a contiguous owner1 entitled to the right of pre-emption. The said amendment sought by the plaintiff in the opinion of the Munsif did not change nature andicharacter of suit, hence he allowed the same. The defendant being agrieved by such order, preferred revision before the District Judge, Hooghly which, inter alia, was transferred to the Court of Additional District Judge who allowed the same and rejected the amendment petition filed by the plaintiff.
5. Mr. Bhaskar Bhatterjee (Bhatta-charga), the learned counsel appearing for the petitioner, impugned the order passed by the Additional District Judge and stated that it is based on parody of reasons. It is further contended that by allowing such amendment; the nature and character of the suit filed by the plaintiff would not substantially be changed. The plaintiff only wants to incorporate in the prayer as an alternative prayer claiming pre-emption right. The accrual of such right being salutary under the provision of Section 8 of the West Bengal Land Reforms Act, the learned Additional District Judge should not have viewed it in such a pedantic manner.
6. Mr. Gopal Ch. Mukherjee, the learned counsel appearing for the defendant No. 1, has however, highlighted that the learned Additional District Judge considered the amendment application in its proper perspective and held that by allowing such amendment the nature and character of suit will positively alter which is likely to cause severe prejudice to the defendants. It is further urged that the foundation of the plaint on the basis of which the original pleadings was filed, shall substantially be altered if the amendments sought by the plaintiff is allowed. On the basis of an alleged contractual right the suit was file for specific performance of contract. Now by introduction of the new plea the original right flowing from the contract is given a go-by and a right sought to be derived on the basis of the provision of Sections 8 and 9 of the West Bengal Land Reforms Act.
Further, an inexorable plea has been taken by the Defendant No. 1 that since the plaintiff did not avail of such right within the statutory period and his right has already been extin guished, by efflux period of limitation, the plaintiff at this stage cannot claim such right by way of amendment. A valuable right having already accrued to defendant No. I, such right cannot be defeated by allowing the prayer of amendment.
7. Mr. Bhattacharjee laid great stress on a decision (Debabrata Bhowmick v. Nanibala Some). This Court in the Division Bench, allowed the amendment application and it is held that the Court's power is not circumscribed by the period of limitation if, in its opinion, the amendment should otherwise be allowed. In the above decision, the right of pre-emption was claimed under Section 8 of the West Bengal Land Reforms Act against the defendant. The plaintiff made an application for amendment claiming that she was a co-sharer and as such she was entitled to preempt the defendant. Originally she claimed being a co-sharer; by virtue of amendment the plaintiff claimed her right on the ground of vicinage as provided in Section 8. Therefore, the Division Bench rightly held that such amendment would not alter nature and character of the suit inasmuch as the plaintiff also claimed right of pre-emption from the very beginning on a different grounds. Such analogy cannot be stretched to this case. In this case, the plaintiff has filed the suit on the basis of his right accrued from alleged contract but by virtue of this amendment, he wants to claim a right of pre-emption on the basis of being a raiyat of an adjoining holding. The nature and character of the rights claimed by the plaintiff being inconsistent, contradictory and mutually exclusive. Therefore, it appears that the learned Additional District Judge is not unjustified to spurn the prayer of the plaintiff.
8. The learned counsel for the plaintiff placed strong reliance on the decision reported in (1983) 2 Cal LJ 44, in the case of Tarapada Shonte v. Parbati Charan Sarkar. On serious cogitation, it is found that the facts of the above decision are quite distinguishable from the present case. In the above decision, the application was filed under the provision of Section 8(i) of the West Bengal Land Reforms Act within the prescribed time. During the pendency of the application, the plaintiff sought an amendment claiming right of pre-emption under Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949. In such event, this Court had rightly held that by such proposed amendment the substantial relief claimed in the original plaint was not to be altered. In the present case, as discussed above, the right was claimed on the basis of a contractual infraction. A faint attempt has been made by the plaintiff that the Court is empowered to grant amendment on the basis of the provision of Section 22 of the Specific Relief Act. The provision of Section 22 is quoted hereunder:--
"Power to grant relief for possession, partition, refund of earnest money, etc. -- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable properly may, in an appropriate case, ask for -
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused.
(2) No relief under cl. (a) or cl. (b) of subsection (1) shall be granted by the Court unless it has been specifically claimed.
Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the Court to grant relief under cl. (b) of sub-section (1) shall be without prejudice to its powers to award compensation under Section 21."
On a plain reading of the provision, it is lucidly clear that such right must flow from the contract. Since the right of pre-emption cannot be said to have flowed from the contract alleged to have been executed, the plaintiff cannot claim relief under the provisions of Section 22 of the Specific Relief Act. Therefore, though at the first blush the argument seems to be attractive but has no merit otherwise. Accordingly, I am unable to agree with the contention of Mr. Bhattachar-I jee.
9. The learned counsel has at the beginning challenged the revisional jurisdiction of this Court under Article 227 of the Constitution of India. But a later stage it was not seriously pressed. Therefore, it is unnecessary to dilate such aspects at length.
10. In the result, I do not find any merit in the petition and accordingly dismissed without costs. The order passed by the Additional District Judge is hereby affirmed.
11. Petition dismissed.