Calcutta High Court (Appellete Side)
Sri Gourav vs Sangvi on 27 September, 2018
Author: Biswajit Basu
Bench: Biswajit Basu
1 (50) 27.09.2018
(p.j.) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION CO No. 4095 of 2017 Sri Gourav V. Sangvi
-versus-
Sri Vimal J. Bavishi & ors.
Mr. Anirban Mazumdar, Mr. S.K. Poddar Mr. M.K. Poddar ... for the petitioner Mr. Tanmoy Mukherjee ... for the opposite party nos. 1 & 2.
This revisional application under Article 227 of the Constitution of India is at the instance of the defendant no.1/petitioner in a suit for declaration, recovery of possession and damages and is directed against an order dated December 04, 2017 passed by the learned Civil Judge (Junior Division), 3rd Additional Court, Alipore, District : 24 Parganas (South) in Title Suit No. 1 of 2016 (15075 of 2011).
The plaintiff/opposite party Nos. 1 and 2 in the suit out of which the present revisional application arises have prayed for the following reliefs:- 2
A. For Declaration that the purported Lease Deed dated 22-03-1989 alleged to be executed by the Defendant no. 2 in favour of the Defendant No. 1 in respect of the suit properties morefully described in the Schedules, hereinbelow is illegal, invalid, void, inoperative and is not binding upon the plaintiffs;
B. For Declaration that the defendant no. 1 has got no right whatever to claim any right and interest of the suit property being premises No. 5A, Balaram Bose 1st lane, and 5B Balaram Bose 1st lane, Kolkata- 700020, P.S. Bhowanipore on the strength of the said invalid and void the purported Lease Deed dated 22-03-1989 alleged to be executed by the Defendant no. 2 in favour of the Defendant No. 1;
C. For ejectment of the defendant nos. 1 and 6 and recovery of Khas possession of the suit properties by evicting the defendant nos. 1 and 6 and/or their men and agents thereform;
D. For Receiver;
E. For Injunction;
F. For costs; and;
G. For such other relief/reliefs to which the plaintiffs may be found entitled to in law and equity.
The plaintiffs at paragraph No. 13 of the plaint stated that they have come to know about the lease deed under challenge in the suit on November 17, 2008. The said paragraph No. 13 is set out below:-
"13. The defendant no. 1 has filed a Civil suit being Title Suit No. 3282 of 2008 in this Court of the learned Civil Judge (Junior Division) at Alipore wherein his prayer for an order of ad- interim injunction was rejected by this learned Court by order no. 2 dated 01-11-2008, and subsequently preferred Misc. Appeal No. 520 of 2008 before the learned Court of the District 3 Judge at Alipore. To know and understand the exact fact, Order Nos. 1 and 2 both dated 5-11-2008 passed in the said Misc. Appeal No. 520 of 2008 are required to be taken together. On going through said orders it could be easily understood that the defendant no. 1 had got the orders ex parte on condition mentioned therein and after swearing on an affidavit that he is a lessee under all co-owners thus creating an impression before the learned District Judge that the purported lease deed has been executed by all six co-owners. The plaintiffs have come to learn about the execution of the said void and invalid Lease Deed on 17/11/2008 being the date on which the notice of the said Misc. Appeal No. 520 of 2008 was served upon the plaintiffs herein."
The plaintiff on the basis of the aforesaid pleadings at Paragraph No. 26 of the plaint pleaded the cause of action of the suit in the following manner:-
"26. The cause of action for the suit arose on and from 17-11-1989 being the date on which the plaintiffs have came to learn about the execution of the void and invalid Lease Deed dated 22- 03-1989 and the same is continuing day to day at premises nos. 5A and 5B, Balaram Bose 1st Lane, Kolkata- 700020, P.S. Bhowanipore situated within the jurisdiction of this learned Court."
Two properties are subject matter of the suit. The said properties have been described in Part. I and Part. II under the Schedule appended to the plaint of the suit.
The evidence from the side of the plaintiff has commenced and during evidence of the PW. 1, the plaintiffs filed an application seeking amendment of the plaint on the ground that at the time of conference with the learned senior advocate it has been detected that due to accidental slip some inadvertent mistakes have appeared in Paragraph No. 26 and in the description of the east side boundary of one of the suit properties described under Part II of the Schedule appended to the plaint.
4
The learned Trial Judge allowed the said application of the plaintiffs by the order impugned. The defendant No. 1 is aggrieved by the said order on the following grounds:-
(i) The trial of the suit has commenced.
(ii) The plaintiff by the proposed amendment are trying to withdraw the admission.
(iii) The only ground assigned in the application amendment not approaching the learned Trial Judge for such amendment before commencement of trial, is slip of computer typing and the said mistake has been described as typographical mistake.
Mr. Anirban Majumdar, leaned counsel appearing on behalf of the petitioner strenuously argued that the amendment of pleading, after commencement of trial is permitted only on the fulfillment of the requirement of the proviso appended to Order 6, Rule 17 of the Code i.e. unless it is proved to the satisfaction of the Court that such amendment could not be sought for before commencement of trial in spite of due diligence the amendment of pleading cannot be allowed.
He placing reliance on an unreported judgment of the Hon'ble Apex Court submits that typographical mistake which is the only ground on which plaintiff is seeking the amendment does not satisfy the requirement of the proviso to under Order 6, Rule 17 of the code as the typographical mistake does not come within the purview of due diligence.
Mr. Tanmoy Mukherjee, learned advocate appearing on behalf of the plaintiffs/petitioners, refuting the contention of Mr. Mazumdar submits that it is always the case of the plaintiffs that the disputed lease deed came into knowledge of the plaintiff on November 17, 2008 and the said date is the date of accrual of the cause of action of the suit, but at paragraph no. 26 of the plaint the year of the date of said cause of action has been wrongly typed as '1989' instead of "2008", which the plaintiff by the proposed amendment want to amend. He further adds that the eastern side boundary of the Part II of the suit property described under the Schedule of the plaint, is butted and bounded 5 by two premises being premises No. 6B and 6A Balaram Bose Street, which have been wrongly typed as 6/3 and 6/4 Balaram Bose Street. The plaintiff by the proposed amendment has prayed the correction of the numbers of the said two premises.
Therefore, according to him the amendment sought for are purely typographical mistake, and the learned Trial Judge has committed no error by allowing the amendments.
Heard the learned advocate for the parties perused the materials on record. It is the consistent case of the plaintiff that they have come up to learn about disputed lease deed on November 17, 2018. The plaintiff accordingly asserted the cause of action of the suit but paragraph no. 26 of the plaint which is set out hereinabove the only year of the date of cause of action has been wrongly mentioned as 1989 instead of 2008 which is apparently an accidental slip apparently caused due to typographical mistake. It would be more evident from the evidence of the plaintiff No. 1, as the said witness has categorically stated that date of knowledge of the said disputed lease deed is November 17, 2018 and i.e. the date of cause of action of the suit.
So far the amendment of the plaintiff relating to the description of the eastern boundary of one of the suit property is concerned. The said amendment also relates to typographical mistake. It is not the case of the defendant/petitioner that if the amendment of the premises number situated at the eastern boundary of the said suit property is allowed the identity of the part II of the suit property would be changed.
Therefore, the amendment sought for by the plaintiff is really very formal in nature which if allowed would not cause any prejudice to the defendants.
The unreported decision relied on by the petitioner is distinguishable in the facts and circumstance of the present case inasmuch as in the said decision the Hon'ble Apex Court held that in a suit in a suit for specific performance. The plaintiff must aver his readiness and willingness in 6 the plaint to satisfy the requirement of Section 16(C) of the Specific Relief Act, 1963 and such an essential avertment cannot be allowed to be incorporated subsequently only on the justification that the same could not be incorporated earlier due to typographical mistake. The Hon'ble Apex Court in view of the mandatory requirement of the avertment under Section 16(C) Specific Relief Act, 1963 held that such an explanation does not come within the purview of 'due diligence'.
In the present case the plaintiff has only sought for the amendment regarding the year of the date of cause of action and the number of two premises which are situated at the eastern boundary of the suit property described under Part II of the Schedule of the suit property. The plaintiffs by the said amendment neither is withdrawing any admission nor such amendment changes the nature and character of the suit property. Moreover the defendant would not be prejudice in any manner if the amendment as sought for by the plaintiff as allowed.
In view of the discussion made above the order impugned does not call for any interference. CO 4095 of 2017 is dismissed. No order as to costs.
Urgent photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Biswajit Basu, J.)