Calcutta High Court
Itc Ltd vs Chowringhee Residency Pvt Ltd on 29 January, 2019
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA 311 of 2018
WITH
CS 285 of 2013
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
ITC LTD
Versus
CHOWRINGHEE RESIDENCY PVT LTD
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 29th January, 2019.
Appearance:
Mr. Ahin Chowdhury, Sr. Adv.
Mr. Samit Talukdar, Sr. Adv.
Mr. Ranjan Bachawat, Sr. Adv.
Mr. Surajit Nath Mitra, Sr. Adv.
Mr. Sarbopriya Mukherjee, Adv.
Mr. Biswajit Kumar, Adv.
Ms. Iram Hasan, Adv.
Mr. Debayan Sen, Adv.
The Court: This is an application for amendment of plaint in a suit rarely nowadays concerning easementary rights.
The basis of the amendment appears to be an order passed by Justice I.P. Mukerji on 16th Januray, 2015 in GA 2428 of 2013 and the order of the Division Bench dated 17th April, 2017 in APO 88 of 2015 by which the order of Justice Mukerji was upheld.
The dispute was with regard to the right of construction by the defendant in an adjacent plot causing interference with light and air as alleged by the plaintiff.2
In the interlocutory proceeding, the plaintiff inter alia had prayed for an order of injunction restraining the defendant from making any construction on the adjacent plot of land. The basis of the application appears to be that the easementary rights of the plaintiff would be interfered with in the event such huge construction comes up in the adjacent land. The prayer for injunction was refused. However, the right to claim damages against the defendant at the trial of the suit was preserved by Justice Mukerji. The Hon'ble Division Bench while affirming the order dated 17th April, 2017 has stated that since the construction is nearing completion, no order could be made for demolition of the construction at this stage. It was thereafter the petitioner filed an application for amendment of the plaint in which the essential relief is for damages.
Mr. Ahin Chowdhury, learned Senior Counsel appearing on behalf of the plaintiff has submitted that the cause of action to claim damages arose first when Justice Mukerji while disallowing the injunction has preserved the right of the plaintiff to claim damages and subsequently by the order of the Division Bench by which the order of the Single Judge was affirmed. Mr. Chowdhury submits that the Division Bench had refused to interfere with the impugned order on the ground that subsequent to passing of the impugned order, and in particular, the construction was nearing completion, no order could be made for the demolition of the construction at this stage. Mr. Chowdhury has referred to a decision of the Hon'ble Supreme Court in Ragu Thilak D. John Vs. 3 S. Rayappan And Others reported in (2001)2 SCC 472 and submits that almost on identical facts the Hon'ble Supreme Court allowed amendment of the plaint.
In opposing the said prayer, Mr. Surajit Nath Mitra, learned Senior Counsel appearing on behalf of the defendant has submitted that the plaintiff, although had the opportunity to claim damages, did not claim any such relief inasmuch as no leave under Order 2 Rule 2 was obtained. Mr. Mitra has referred to paragraph 13 of the plaint and submits that the original averments made by the plaintiff is that the defendant is invading and threatening to invade the plaintiff's right to enjoyment of its property at Fountain Court and particularly its right to access and use of light and air and the invasion is such that compensation in money would not be adequate relief. Mr. Mitra has also referred to the said paragraph which states that there exists no standard for ascertaining the actual damage caused or likely to be caused by the invasion. Mr. Mitra has submitted that in the earlier paragraphs of the plaint the plaintiff has stated that they felt strong and continuous tremor as a result of construction related activities in February, 2013 but did not feel it necessary to claim damages on the basis of such pleading. It is submitted that the order of the learned Single Judge cannot furnish a cause of action for the defendant to claim for damages and any claim for damages as on date on the initial cause of action of February, 2013 as alleged in paragraph 9 of the plaint would be barred by limitation. Mr Mitra further submits that in the event prayer (b), 4 as proposed by the plaintiff if allowed, would nullify the orders passed by the learned Single Judge as well as by the Division Bench. Mr. Mitra accordingly has prayed for dismissal of the petition.
By the proposed amendment the plaintiff is seeking to introduce certain averments in justification of its claim for damages. It is true that the plaintiff on the basis of the original pleading at paragraph 13 could have made a claim for damages for the loss and damages suffered by the plaintiff by reason of continuous wrong. Nothing prevented the plaintiff to claim damages on the basis of the original cause of action as the present claim for damages could be considered to be only a claim for aggravated damage by reason of substantial construction raised during the pendency of the earlier proceeding. However, the foundational pleading for damages was present in the unamended plaint. On the basis of paragraph 13 of the plaint, the plaintiff could have claimed a decree for damages and/or enquiry into loss and damage suffered by the plaintiff as it appears to be a continuous cause of action. The quantification however could not have been possible at that point of time. The plaintiff now has quantified its loss and damages in paragraph 16E of the plaint and claimed an enquiry into the loss and damages in paragraph 16G. Paragraph 13 of the plaint is in consonance with Section 38 of the Specific Relief Act which deals with perpetual injunction. However, the fact remains that substantial construction has taken place during the pendency of the suit and the plaintiff has now 5 claimed damages for the constructions that have come up now, which is nearing conclusion. This could give a cause of action to the plaintiff to claim damages. It was in view thereof that the learned Single Judge had preserved the right of the plaintiff to claim damages at the trial of the suit. Whether claim for damages in the proposed amendment would be barred by limitation or not or barred under Order 2 Rule 2 of the Code of Civil Procedure, need not to be decided in this proceeding. Prima facie the bar under Order 2 Rule 2 would not apply at this stage. The opinion expressed is prima facie and not on the merits of the dispute. It cannot be said that the defendant has not made out a strong prima facie case on merits of the claim in the proposed amendment and raise issues which may require consideration at the trial. The proposed amendment relating to the claim for damages is a subsequent event, which the plaintiff can always bring on record for a proper adjudication of all the disputes between the parties. With regard to the objection raised by Mr. Mitra in respect of prayer (b), it is needless to mention that the observations made in the interlocutory proceeding are tentative and not final. The plaintiff may not get an interim order as the earlier orders would operate as res judicata between the parties at the interlocutory stage but the reliefs claimed in the suit are in the nature of final reliefs which can only be decided at the trial of the suit on appreciation of evidence. On such consideration, the amendment is allowed. The question of limitation is not gone into at this stage as the same is not apparent.6
Under such circumstances, there shall be an order in terms of prayers (a), (b) and (c) of the Master's Summons.
The plaintiff shall serve a copy of the amended plaint upon the Advocate-on-Record of the defendant within two weeks after the amendment is carried out. Consequent upon the amendment being carried out, the defendant shall file additional pleadings in relation to the amendment within five weeks thereafter.
GA 311 of 2018 stands disposed of.
(SOUMEN SEN, J.) R.Bhar