Calcutta High Court (Appellete Side)
Anwar Ali Molla & Anr vs Shaikh Sonamoni & Anr on 13 March, 2019
Author: Biswajit Basu
Bench: Biswajit Basu
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Biswajit Basu.
C.O. 704 of 2017
Anwar Ali Molla & Anr.
-Versus-
Shaikh Sonamoni & Anr.
For the petitioners : Mr. Haradhan Banerjee,
Ms. Manideepa (Paul) Roy,
Mr. Nilmoni Das.
For the opposite parties : Mr. Jiban Ratan Chatterjee,
Mr. Sandeep Kumar Tiwari
Heard on : 06.03.2019
Judgement on : 13.03.2019
Biswajit Basu, J.
1. The revisional application under Article 227 of the Constitution of India is at the instance of the plaintiffs in a suit for declaration of title and is directed against the order dated December 23, 2016 passed by the 4th Court of Civil Judge (Junior Division), Howrah, in Title Suit No. 176 of 2013. 2
2. The plaintiffs in the suit filed in three applications first, application is an application under Order 6 Rule 17 of the Code of Civil Procedure praying amendment of the plaint, the second is an application under Section 153 read with Section 151 of the Code seeking amendment of the application for injunction in the tune of the application for amendment of the plaint of the suit and third application is an application under Order 1 Rule 10(2) of the Code. The learned Trial Judge by the order impugned has dismissed all the three applications filed by the petitioners with costs.
3. Mr. Banerjee, learned Counsel appearing on behalf of the petitioner submits that the suit property was originally belonged to one Mohabbat Ali Molla who during his lifetime executed two deeds of settlement whereby the suit properties were settled in favour of his two sons, the petitioners herein. He submits that the said Mohabbat Ali Molla died leaving behind him, his said two sons and four daughters. The said four daughters during the pendency of the suit transferred a portion of the suit properties in favour of Momtaj Begum, the wife of opposite party No. 1 as such the petitioners applied before the learned Trial Judge for amendment of the plaint to incorporate a further prayer in the suit that the transfer deed executed by the said daughters of the Mohabbat Ali Molla in favour of said Momtaj Begum is void and also prayed incorporation of some averments in the plaint in support of the said prayer. The petitioners since are proposing to challenge the said transfer in favour of the said Momtaj Begum, they applied for addition of the said Momtaj Begum in the suit.
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Mr. Banerjee, further submits that even if it is assumed that the petitioners have acquired the knowledge of the said transfer in the year 2015 from the suit filed by the said Momtaj Begum and the defendant No. 1 being Title Suit No. 1294 of 2015 then also the application for amendment since was filed on April 5, 2016 i.e. within three years from the date of execution of the said deed of transfer, was within the prescribed period of limitation.
4. Mr. Chatterjee, learned senior counsel appearing on behalf of the opposite party submits that the said Momtaj Begum and the defendant No. 1 have already filed a suit for declaration of their title over the suit properties on the strength of the said deed executed by the daughters of said Mohabbat Ali in their favour and in the said suit the petitioners are the parties. Therefore, according to him there is no necessity for the amendment of the plaint of the present suit since the claim of title by said Momtaj Begum over a portion of the suit property on the basis of said deed would be adjudicated in the said suit.
Heard learned counsel for the parties. Perused the materials on record.
5. It appears on perusal of the plaint of the suit out of which the present revisional application arises that the petitioners are claiming absolute right, title and interest over the suit schedule properties on the strength of two 4 settlement deeds executed by their father, the admitted owner of the suit properties Mohabbat Ali. Four daughters of the said Mohabbat Ali claiming to be the owners of the suit properties by inheritance transfered their share in the suit properties by the deed of transfer dated January 29, 2014 in favour of the proposed added party in the suit i.e. during the pendency of the suit.
6. The plaintiffs by the proposed amendment are seeking amendment of plaint to throw challenge to the legality and validity of the said deed and also praying incorporation of averments in the plaint to give support to their said prayer. The said deed was executed admittedly during the pendency of the suit. The petitioners although in the application for amendment has claimed that they have acquired the knowledge of the said transfer on April 3, 2016 but when the said Momtaj Begum along with her husband filed a suit being Title Suit No. 1294 of 2015 for declaration of their right, title and interest over a portion of the suit property on the strength of the said deed, the said claim of the petitioner of acquisition of knowledge of execution of the said deed does not appear to be correct, particularly when they are parties to the said suit.
But it is rightly submitted by Mr. Banerjee, that the application for amendment of the plaint to get a decree of declaration regarding the validity of the said deed since has been filed within three years from the date of it's execution, the application for amendment is well within the period of limitation as prescribed under Article 58 of the Limitation Act, 1963. 5
7. Moreover, the petitioners by the proposed amendment are seeking to incorporate some events happened during the pendency of the suit and has prayed relief based on the happening of the said subsequent events. In view of the nature of the amendment sought for and the circumstances which necessitated such amendment, the application for amendment cannot said to be mala fide one. On the contrary such amendment is necessary for the proper and effective adjudication of the dispute between the parties.
8. The application for amendment of the application for injunction filed in the suit is consequential to the amendment of the plaint. The application for addition of said Momtaj Begum being a transferee pendente lite, particularly when her acquisition of title in the suit properties are under challenge in the suit, she is a necessary party to such suit.
In view of the discussion made above, the order impugned is set aside the applications filed by the petitioners for amendment of plaint and the amendment of application for injunction are allowed. The petitioners are required to file amended plaint and the amended application for injunction within two weeks from the date of this order. The defendants are at liberty to file additional written statement. The defendants are also at liberty to file additional written objection to the amended application for injunction.
9. The application under Order 1 Rule 10(2) of the Code filed by the petitioners is allowed. Let, Momtaj Begum wife of Saikh. Sonamoni of Ankurhati Uttarpara, Police Station. Domjure, Dist. Howrah be added as defendant No. 3 in the suit. The plaintiffs are required to take steps for service of summons upon the said added defendant immediately. 6
C.O. No. 704 of 2017 is thus allowed.
However, there shall be no order as to costs.
Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(BISWAJIT BASU, J.)