Calcutta High Court (Appellete Side)
Smt. Rekha Rom vs Abhijit @ Biju Dey & Ors on 30 January, 2015
Author: Arijit Banerjee
Bench: Arijit Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
CO 2401 OF 2013
SMT. REKHA ROM
-VS.-
ABHIJIT @ BIJU DEY & Ors.
Present : Hon'ble Justice Mr. Arijit Banerjee
For the petitioner : Mr. Rabindranath Mahato, Adv.
For the opposite party : Mr. Rwitendra Banerjee, Adv.
Heard On : 08/01/2015 & 19/01/2015
Judgment On : 30/01/2015
Arijit Banerjee, J.:
(1) The petitioner is the defendant no. 2 in Other Suit No. 10 of 2010 pending before the Ld. Judge, Senior Division, 2nd Court at Midnapur. In the instant revisional application the petitioner has challenged an order dated 3rd June, 2013 passed by the Ld. Trial Court allowing the amendment of the plaint prayed for by the opposite party no. 1/plaintiff. (2) The plaintiff instituted Other Suit No. 483 of 2008 before the Ld. Trial Court claiming a decree of specific performance of an agreement for sale of the suit property against the defendant no. 1, delivery of possession of the suit property and alternatively return of the plaintiff's money. Prior to institution of the suit the defendant no. 2 purchased the suit property from the defendant no. 1 and the deed of conveyance in favour of the defendant no. 2 was duly registered on 25th March, 2008. This was within the knowledge of the plaintiff as would appear from paragraph 15 of the plaint wherein the factum of sale of the suit property by the defendant no. 1 to the defendant no. 2 has been stated. However, the plaintiff did not claim any relief for nullification of such sale in favour of the defendant no. 2. The suit was subsequently re-numbered as Other Suit No. 10 of 2010. (3) In February 2013, the plaintiff took out an application for amendment of the plaint alleging that from the witness commission report submitted by the commissioner in November, 2012, he came to know that the faculties of the defendant no. 1 were not functioning and that she was not in a position even to depose before the commissioner. The plaintiff alleged that the defendant no. 1 lacked capacity to effect sale of the suit property in favour of the defendant no. 2 and conveyance of the suit property in favour of the defendant no. 2 had been obtained by fraud and by exerting undue influence on the defendant no. 1. The plaintiff prayed for incorporation of these allegations in the plaint by way of amendment and also sought amendment of the prayer portion by incorporating a prayer for declaration that the sale by the defendant no. 1 of the suit property to the defendant no. 2 was null and void.
(4) The Ld. Judge held that for proper adjudication of the suit the deed of sale executed by the defendant no. 1 in favour of the defendant no. 2 was required to be challenged by the plaintiff. The Ld. Judge observed that although the amendment would change the nature and character of the suit to some extent, yet if the amendment was not allowed, complications may arise in future and the same would give rise to multiplicity of proceedings. By the impugned order, the Ld. Judge allowed the amendment of the plaint as prayed for by the plaintiff.
(5) Appearing for the petitioner/defendant no. 2, Ld. Counsel submitted that the order allowing the amendment of the plaint is bad on five counts. (6) Firstly, he submitted that the amendment should not have been allowed in view of Order 2 Rule 2 of the CPC.
(7) Secondly, he submitted that the plaintiff filed the suit with full knowledge of the sale of the suit property by the defendant no. 1 to the defendant no. 2 but refrained from claiming any relief for nullification of such sale. By doing so, the plaintiff had relinquished the prayer for declaration which the plaintiff has sought to incorporate in the plaint by way of amendment. This should not be permitted, according to him. (8) Thirdly, he submitted that as on the date of the amendment application, the prayer for declaration had become time barred. Ld. Counsel referred to Article 56 of the Schedule to the Limitation Act, 1963 which provides that the limitation period for filing a suit to declare the forgery of an instrument issued or registered is three years from the date when the issue or registration became known to the plaintiff. He submitted that as on the date of the filing of the suit in 2008 the plaintiff was aware of execution and registration of the sale deed in respect of the suit property in favour of the defendant no. 2. As such, the prayer for declaration became time barred in 2011 and such a prayer should not have been allowed to be incorporated in the plaint by way of amendment in the year 2013.
(9) Fourthly, Ld. Counsel submitted that the amendment changes the nature and character of the suit completely and such an amendment is impermissible in law.
(10) Fifthly, Ld. Counsel submitted that by way of the amendment, the plaintiff was seeking to withdraw an admission made in the plaint i.e. admission to the effect that the defendant no. 1 had sold and transferred the suit property to the defendant no. 2 by duly executing and registering a deed of sale. Such withdrawal of admission by way of amendment should not be allowed.
(11) Ld. Counsel relied on three decisions of the Apex Court. The first decision was in the case of South Konkan Distilleries-v.-Prabhakar Gajanan Naik reported in (2008) 14 SCC 632. Ld. Counsel relied on paragraphs 10 and 16 of the said judgment which are set out hereunder:-
"10. From the above, therefore, one of the cardinal principles of law allowing or rejecting an application for amendment of the pleading is that the courts generally, as a rule, decline to allow amendments, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application. But that would be a factor to be taken into account in the exercise of the discretion as to whether the amendment should be ordered, and does not affect the power of the Court to order it, if that is required in the interest of justice. In Ragu Thilak D. John-vs.-S. Rayappan & Ors., 3 [2001 (2) SCC 472], this Court also observed that where the amendment was barred by time or not, was a disputed question of fact and, therefore, that prayer for amendment could not be rejected and in that circumstances the issue of limitation can be made an issue in the suit itself. In a decision in Vishwambhar-vs.-Laxminarayan (dead) through Lrs. & Anr. [(2001) 6 SCC 163], this Court held that the amendment though properly made cannot relate back to the date of filing of the suit, but to the date of filing of the application. Again in Vineet Kumar v. Mangal Sain Wadhera, 5 [AIR 1985 SC 817] this Court held that if a prayer for amendment merely adds to facts already on record, the amendment would be allowed even after statutory period of limitation.
16. In view of our discussions made hereinabove that there was no dispute on the question of limitation, it would not be fit and proper to hold that the Courts below had acted illegally and with material irregularity in the exercise of their jurisdiction in rejecting the application for amendment of the written statement and the counter claim. The learned counsel for the appellants, however, relied on a decision of this Court reported in AIR 1967 SC 96 [A. K. Gupta & sons Ltd.-vs.-Damodar Valley Corporation, 7] in order to satisfy us that the prayer for amendment for a sum already specified in the plaint or such other amount as was to be determined after accounts, ought to be allowed though the suit for recovery of money was barred when the amendment was sought. In our view, that decision of this Court stands on a different footing altogether and will not be of any help to the appellants. In that decision, it was made clear that the amendment of pleadings introducing new case cannot be allowed, if suit on such case is barred. In that decision also, it was made clear that in the matter of allowing amendment of pleadings, the general rule is that a party is not allowed by amendment to set up a new case or a new cause of action, particularly when a suit on the new cause of action is barred. However, an exception was given in that decision saying where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendment is to be allowed even after expiry of the statutory period of limitation. We have already observed that there is no quarrel on the proposition enunciated by this Court in the aforesaid decision. As held hereinabove, the date on which the application for amendment of the written statement and the counter claim was filed, the claim was already barred by limitation. Therefore, if a fresh suit was filed on the amended claim, there cannot be any dispute that the same could also be barred by the law of limitation. Under these circumstances and applying also the principles laid down in the aforesaid decision in the case of A.K.Gupta (supra), in the facts of this case, we are of the view that since even on the date of filing of the application for amendment of the written statement and the counter claim, the claim was barred and no fresh suit could be filed on such amended claim and, therefore, the two courts below had acted within their jurisdiction in rejecting the prayer for amendment of the written statement and the counter claim. It may not be out of place to mention that following the principle laid down in A.K.Gupta's case (supra), this Court again in Vineet Kumar-vs.- Mangal Sain Wadhera, 8 [1984 (3) SCC 352] expressed the same view to which we have already adhered to."
(12) The second decision he relied on was in the case of Bharat Karsondas Thakkar-v.-M/s. Kiran Construction Co. reported in (2008) 13 SCC 658. In this case, the Supreme Court held that the High Court had erred in law in allowing the amendment of the plaint which completely change the nature and character of the suit from being a suit for specific performance of an agreement to a suit for declaration of title and possession followed by a prayer for specific performance of an agreement of sale entered into between its assignee and the vendors of the assignees.
(13) The third decision relied upon by Ld. Counsel is an unreported decision of the Apex Court in the case of S. Malla Reddy-v.-M/s. Future Builders Co-operative Housing Society. In this case, the Supreme Court held that an admission made by the defendants in the written statement cannot be allowed to be withdrawn by way of amendment of pleadings as that would deprive the plaintiff of an accrued benefit and would cause substantial injustice to the plaintiff.
(14) As against this, Ld. Counsel appearing for the plaintiff/opposite party no. 1 submitted that the plaintiff discovered the fraud from the witness commission report sometime in November, 2012 and soon, thereafter, applied for amendment of the plaint to incorporate a case of fraud and a consequential prayer for declaration to nullify the sale of the suit property by the defendant no. 1 to the defendant no. 2. He submitted that the amendment that has been allowed by the Ld. Trial Judge does not change the nature and character of the suit but merely adds a different and additional approach to the same facts. As such, an amendment can be allowed even after expiry of the statutory period of limitation. In this connection, he relied on a Supreme Court decision in the case of A.K. Gupta & Sons Ltd.-v.-Damodar Valley Corporation reported in AIR 1967 SC 96 para 7 which is reproduced hereunder:-
"7. It is not in dispute that at the date of the application for amendment, a suit for a money claim under the contract was barred. The general rule, no doubt, is that a party is not allowed by amendment to set up a new case or a new cause of action particularly when a suit on the new case or cause of action is barred : Welch v. Neale, (1887) 19 QBD 394. But it is also well recognised that where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts to no more than a different or additional approach to the same facts, the amendment will be allowed even after the expiry of the statutory period of limitation: see Charan Das v. Amir Khan, 47 Ind App 255 (AIR 1921 PC 50) and L. J. Leach and Co. Ltd. v. Jardine Skinner and Co., 1957 SCR 438: (AIR 1957 SC 357)."
(15) I have considered the rival contentions of the parties. Order 6 Rule 17 of the CPC provides that the Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. It is settled law that courts should take a liberal approach towards the amendment of pleadings. A party seeking to amend his pleadings should ordinarily be permitted to do so if the same does not cause irreparable prejudice to the other party. Even a claim that appears to be barred by limitation on the date of filing of the amendment application may be allowed to be incorporated in the pleadings by way of amendment if that is required in the interest of justice. The question of limitation would only be a factor to be taken into account in the exercise of discretion as to whether or not the amendment should be allowed (Prabhakar Gajanan Naik, Supra). Limitation is generally a mixed question of fact and law and such question should be left for determination at the final trial of the suit by taking proper evidence.
(16) In the instant case the plaintiff's original claim in the suit was for specific performance of an agreement for sale of the suit property by the defendant no. 1 to the plaintiff and for delivery of possession of the suit property. As on the date of institution of the suit the plaintiff was aware that the suit property had been conveyed by the defendant no. 1 to the defendant no. 2. Ideally, the plaintiff should have challenged such conveyance in the plaint as originally framed. However, he did not do so. I cannot lose sight of the fact that more often than not parties to a litigation are lay persons who are not well-acquainted with the legal complexities. Generally they go by their lawyer's advice. It is possible that the plaintiff was not properly advised and as such, did not challenge the sale of the suit property by the defendant no. 1 to and in favour of the defendant no. 2. However, after institution of the suit and indeed after a lapse of five-years the plaintiff was advised to file application for amendment to incorporate a case challenging the said sale in favour of the defendant no. 2 and a consequential prayer of declaration that such sale is ineffective and bad in law. The Ld. Judge was of the view that for proper adjudication of the issues involved in the suit the plaintiff should be allowed to amend the plaint as prayed for. The Ld. Judge was also of the view that to avoid multiplicity of judicial proceedings the amendment prayed for should be allowed.
(17) The Ld. Judge in his discretion allowed the amendment of plaint prayed for by the plaintiff and he gave cogent reasons for allowing such amendment. I cannot find fault with the reasons given by the Ld. Judge. It cannot be said that the amendment would cause irreparable prejudice to the defendant no. 2. By allowing the plaintiff to amend the plaint the Ld. Court did not accept the correctness of the averments sought to be introduced by way of amendment. The plaintiff would still have to prove such averments at the final trial to be entitled to a decree in the suit.
(18) The power and duty of the High Court under Article 227 of the Constitution of India is essentially to ensure that the courts and tribunals, subordinate to the High Court have done what they are required to do. Law is well settled by various decisions of the Supreme Court and the High Courts that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material or resulting in manifest injustice. (Pls. See Achutananda Baidya-vs.-Prafullya Kumar Gayen reported in 1997 5 SCC 76).
(19) Under Article 227 of the Constitution, the High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere a grave injustice will remain uncorrected. While acting under Article 227 the High Court cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error which is not apparent on the face of the record. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. (Pls. See Estralla Rubber-vs.-Dass Estate (p) Ltd. reported in 2001 8 SCC 97).
(20) Keeping the above principles in mind, I am not inclined to interfere with the judgment and order impugned in this revisional application. By passing the impugned order the Ld. Trial Judge has not acted beyond jurisdiction nor can it be said that the order is perverse. In my view, no manifest injustice has been caused to the petitioner herein by the order impugned. The revisional application fails and is dismissed. There will be no order as to costs.
(Arijit Banerjee, J.)