Calcutta High Court (Appellete Side)
Sk. Akbar Ali vs Biswajit Karmakar on 28 September, 2016
IN THE HIGH COURT AT CALCUTTA
(CIVIL REVISIONAL JURISDICTION)
C.O. No. 2143 of 2013
Sk. Akbar Ali
-Vs.-
Biswajit Karmakar, being deceased represented by his heirs
and heiresses, Smt. Gayatri Ghosh & 4 Ors.
-And-
Purnima Dutta, being deceased her heirs and heiresses,
Biswanath Dutta & 2 Ors.
Present : The Hon'ble Mr. Justice Siddhartha Chattopadhyay
For the Petitioner : Mr. Tanmoy Mukherjee,
Mr. Raghunath Das,
Mr. Hiranmoy Bhattacharya,
Mr. Atanu Chakraborty.
For the Opposite Party No. 1 series : Mr. Mrinal Kanti Das, Sr. Adv.,
Mr. Somnath Roy Chowdhury.
For the Opposite Party No. 2 series : Mr. Haradhan Banerjee,
Mr. Amitava Pain,
Mr. P.P. Mukherjee,
Mr. Subhrangshu Dutta.
Heard On : 03.05.2016, 01.07.2016, 15.07.2016,
18.07.2016, 26.07.2016, 09.08.2016,
16.08.2016.
C.A.V. On : 16.08.2016.
Judgment Delivered On : 28.09.2016.
Siddhartha Chattopadhyay, J.:
Calling in question the legal pregnability of the order dated 30.05.2013 passed by the learned Civil Judge (Junior Division) 5th Court at Howrah in Title Suit No. 118 of 2006, the plaintiff/petitioner has sought for the amendment of the plaint on the ground that the learned Trial Court failed to exercise its jurisdiction and failed to consider that to resolve the real controversy in the suit it was necessary. Learned Trial Court also lost sight of the fact that in the original plaint he had taken the leave under Order II Rule 2 of the C.P.C. The main grievance is such without adhering to the factual aspects followed by legal principles the learned Trial Court rejected the amendment only on the ground of limitation. According to him, the principal/opposite party (since deceased) at the time of filing written statement admitted that there was an agreement between the principal- defendant/opposite party and the present plaintiff/petitioner to the effect that the principal-defendant/opposite party would execute the sale deed in his favour. Therefore, by way of proposed amendment he is not trying to insert any new cause of action. In his plaint also he has categorically stated that there was an agreement between him and the principal- defendant/opposite party for selling the suit property to him and a substantial part of consideration has been paid by him to the principal- defendant/opposite party. After the death of the principal- defendant/opposite party, his predecessors stepped into the shoes of the principal-defendant/opposite party but they are reluctant to execute the sale deed in terms of the agreement to sale. He further contended that if the aforesaid factual aspects were considered by the learned Court below in its proper perspectives in that case he would succeed in getting a favourable order from the Trial Court.
2. Learned Counsel appearing on behalf of the successors of the principal-defendant/opposite party submits that there was no such agreement by and between them and they are not willing to execute and register the deed of conveyance in favour of the plaintiff in respect of the said property. According to the plaintiff/petitioner, had to seek for an amendment and to incorporate the said averment in the schedule of amendment. He has also wanted to incorporate in the prayer portion i.e. a decree for specific performance of contract against the substituted defendant No. 1 (series).
3. The present petitioner/plaintiff has also come up with another fact that a suit has been filed by one Purnima Dutta in connection with the same suit property and the said suit was filed against Biswajit Karmakar (principal-defendant/opposite party) for a declaration that she is the absolute owner of the property as described in the schedule of that plaint and the principal-defendant i.e. Biswajit Karmakar (since deceased) had no manner of right, title and interest in respect of the property in question. In the said suit the plaintiff Purnima Dutta clearly averred that the defendant (present defendant Biswajit Karmakar since deceased) had already transferred his right, title and interest in the suit property in favour of her, in the year 1977 and therefore, the defendant lost all his right, title and interest. After coming to know about the said fact the present petitioner has filed the present Title Suit bearing No. 118 of 2006 claiming for a decree for permanent injunction restraining the present opposite party from transferring or encumbering or making over possession of the suit property to anybody else in any manner whatsoever. Thereafter, the present petitioner has filed an application under Order I Rule 10 (2) of C.P.C. in connection with Title Suit No. 13/2003. The said prayer was rejected by the Trial Court in Title Suit No. 13/2003. Against that order, the present petitioner has filed a revisional application bearing C.O. 4067 of 2012 before a Co-ordinate Bench and the revisional application was disposed of by the Co-ordinate Bench and allowed the present petitioner to be a party in that proceeding. While disposing of the said revisional application, the said Co- ordinate Bench held that the present petitioner is a necessary party in that Title Suit No. 13/2003 and held "the learned trial Judge in considering the application for addition of party did not consider the impleadment of Purnima in Akbar Ali's suit and also overlooked the fact that Akbar Ali wants to protect his interest in the suit property in view of assertion of Purnima in the application filed under Order I Rule 10 of the C.P.C. and the stand taken by the legal heirs of Biswajit in Purnima's suit."
4. The said Co-ordinate Bench also held that there should be consolidation of two suits and that part of the order was a consent order. Accordingly, thereafter an application under Section 24 of C.P.C. was filed before the learned District Judge and now both the suits i.e. Title Suit No. 13 of 2003 and Title Suit No. 118 of 2006 are being heard by the same Judge.
5. In such circumstances, the plaintiff/petitioner has filed the amendment of plaint and the learned Trial Court has rejected his such application mainly on the ground of limitation. Factual aspects of this case are very complicated. It appears from the plaint of Title Suit No. 118 of 2006 that the plaintiff craved for a leave to file a separate suit for specific performance of contract in terms of Order II Rule 2 of C.P.C. Therefore, it cannot be said that the plaintiff/petitioner had not made any averment regarding specific performance of contract. This apart, the recital of the plaint as a whole speaks that there was an agreement by and between the present petitioner and the principal-defendant/opposite party (Biswajit Karmakar since deceased), wherein the latter entered into an agreement with the present petitioner to sale the suit property and petitioner has paid a substantial sum to the principal/defendant. The said principal/defendant has filed written statement acknowledging the said averment and contended that due to some problems in his family, he could not execute the sale deed but undertook to convey the property by registered deed. Therefore, if we read the averment of the plaint along with the principal/defendants recital in the written statement in that case it can be safely concluded that the plaintiff wanted to lodge the suit for permanent injunction as well as for a decree of specific performance of contract. It is true in the prayer portion that has not been specifically pleaded. The principal/defendant's (since deceased) admission in written statement certainly goes in favour of the plaintiff/petitioner.
6. Learned Counsel appearing on behalf of the opposite party No. 2 has contended that there is a collusion in between the plaintiff/petitioner and the defendant/opposite party No.1 (series) and they are handing in glove with each other to frustrate the claim of the present opposite party No.
2.
7. Be that as it may, the present opposite party has filed also Title Suit No. 13 of 2003 for getting the decree of permanent injunction in respect of the same suit premises. The present plaintiff/petitioner has been added therein as added defendant. Simultaneously, in the present suit of Title Suit No. 118 of 2006 the said plaintiff of Title Suit No. 13 of 2003 has been added as a party in connection with C.O. 4067 of 2012. Another Co-ordinate Bench has directed for consolidation of suits and that has been obeyed by both the parties. Therefore, the main issues pending before the Trial Court in respect of both the suits are to decide the sale of the suit property either in favour of Purnima Dutta or in favour of Akbar Ali. The said Purnima Dutta claimed possession without proving title to the property and at the same time the present plaintiff/petitioner Akbar Ali in order to succeed in his suit would require to establish that the said property was not encumbered and the said Biswajit Karmakar since deceased was capable of selling the suit property in his favour.
8. Now, this Court wants to put it on record that challenging the order dated 30.05.2013 another revisional application was filed before this Court and Justice Prasenjit Mandal (as His Lordship then was) has allowed this said amendment after a threadbare discussion on 26.07.2013. Thereafter, the present opposite party No. 2 had filed an application for review on the ground that they were not served any notice to that effect. Justice Prasenjit Mandal (as His Lordship then was) was pleased to recall the former order dated 26.07.2013. But during his tenure as Judge of this Court fresh hearing of C.O. could not take place. Now, the time is up for this Court to dispose of the present C.O. Learned Counsel appearing on behalf of the respective parties had referred to the decisions reported in (1) (2001) 1 SCC 472, (Ragu Thilak D. John -Vs.- S. Rayappan & Ors.), (2) (1997) 2 SCC 611 (T.L. Muddukrishana & Anr. -Vs.- Lalitha Ramchandra Rao (Smt.), (3) (2010) 14 SCC 596, (Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) -Vs.- Ramesh Chander & Ors.,) (4) 87 CWN 797, (Mohammad Jebbas Ali & Ors. -Vs.- Rahima Bibi & Ors.)
9. Now, I am to consider the purpose of amendment of pleadings. It is perhaps needless to say that amendment of the pleadings, if allowed, does not mean that the issues involved have been decided. On the contrary, amendment means that it is a kind of advance notice to the other side as to the plea, which the amendment seekers may take up during the trial. If it was a new fact, which causes surprises, in that case proposed amendment could be axed. Here the position is quite different.
10. In this instant case, the present plaintiff/petitioner claimed to have his knowledge about the claim of Purnima Dutta when she has been added as a party in his case Title Suit No. 118 of 2006. Then and there he wanted to be a party in the suit filed by Purnima Dutta bearing Title Suit No. 13 of 2003. Ultimately by virtue of the order passed by the Co-ordinate Bench he has been added to be a party in that suit.
11. On perusal of the said decisions it appears to me that while allowing or rejecting the application for amendment Court should see the basic principles which would be the guiding factors:-
"(I) Whether the amendment sought is imperative for proper and effective adjudication of the case;
(II) Whether the application for amendment is bona fide or mala fide;
(III) The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(IV) Refusing amendment would in fact lead to injustice or lead to multiple litigation; (V) Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and, (VI) As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. These are some of the important factors which may be kept in mind while dealing with application filed under Order VI Rule 17. These are only illustrative and not exhaustive.
The decision on an application made under Order VI Rule 17 is a very serious judicial exercise and the said exercise should never be undertaken in a casual manner. We can conclude our discussion by observing that while deciding applications for amendment the courts must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide, worthless and/or dishonest amendments."
12. It appears to me that since the real controversy between the parties is who is the owner and in possession of the suit properties and since both of them are putting their rival claims on the basis of the documents, which they have. In such circumstances, I am of the view to resolve the said dispute this amendment cannot be said as unnecessary.
13. I cannot help quoting a paragraph of the decision reported in 87 CWN 797, (Md. Jebbas Ali -Vs.- Rahima Bibi) and held "it is settled law that the court has a large measure of discretion in the matter of allowing amendments and court's such power is liberally exercised. On the question of amendment of pleadings we ought to adopt a procedure which would ensure proper administration of justice and at the same time shorten rather than delay fair disposal of the case. In case, upon the pleadings originally made, the court has competence to try the cause, the said court ought to consider the application for amendment of the plaint even when proposed amendment might affect court's jurisdiction to further try the suit."
14. In the judgment reported in (2000) 1 SCC 712, (B.K. Narayana Pillai v. Parameswaran Pillai), the Hon'ble Apex Court held "the purpose and object of Order 6 Rule 17 CPC is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. The power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interests of justice on the basis of guidelines laid down by various High Courts and this Court. It is true that the amendment cannot be claimed as a matter of right and under all circumstances. But it is equally true that the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be general rule particularly in cases where the other side can be compensated with the costs. Technicalities of law should not be permitted to hamper the courts in the administration of justice between the parties. Amendments are allowed in the pleadings to avoid uncalled for multiplicity of litigation."
15. In the Title Suit No. 118 of 2006 the plaintiff has categorically stated regarding specific performance of contract and which has been admitted by the principal-defendant/opposite party in his written statement. So pleading of specific performance of contract has been there, but only he failed to incorporate the same in the prayer portion. A leave under Order II Rule 2 has been prayed for in his plaint although for a liberty to file a fresh suit. But the intention of the allowing the amendment is also for minimizing the litigation. Considering the peculiar facts and circumstances of this case, I am of the view that the amendment should be allowed with a cost of Rs.5,000/- to be paid by the present petitioner to the opposite party No. 2 by a bank draft within 15 days after reopening of Puja Vacation.
16. With this direction this revisional application stands allowed. The impugned order passed by the learned Trial Court dated 30.05.2013 is hereby set aside.
17. Let a copy of this judgment be sent to the learned Court below for his information and taking necessary action in accordance with law.
18. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SIDDHARTHA CHATTOPADHYAY, J.) A.F.R/N.A.F.R.