Calcutta High Court (Appellete Side)
Pranab Das @ Gopal Das vs Pradip Das & Ors on 15 March, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
The Hon'ble Justice Jyotirmay Bhattacharya
And
The Hon'ble Justice Shib Sadhan Sadhu
F.A.T 340 of 2015
With
CAN 9328 of 2015
Pranab Das @ Gopal Das
Versus
Pradip Das & Ors.
For the Appellant/ : Mr. Prabal Kumar Mukherjee, Sr. Adv.
applicant : Mr. Sukanta Chakraborty, Adv.
: Mr. Anindya Halder, Adv.
: Mr. Mobaidur Hossain, Adv.
For the Respondent : Mr. S. P. Roychoudhury, Sr.Adv.
Nos. 1,2 & 3 : Mr. Partha Pratim Roy, Adv.
: Mr. L.N. Bhattacharya, Adv.
For the Respondent : Mr. Ashis Kumar Chowdhury, Adv.
No.4 : Mr. Indranil Patra, Adv.
Heard on : 22.02.2016, 24.02.2016
Judgment on : 15th March, 2016.
Jyotirmay Bhattacharya, J.
This First Appeal is directed against the judgment and decree dated 8th May, 2015 passed by the Learned Civil Judge (Senior Division) 9th Court at Alipore in Title Suit No.29052 of 2012, at the instance of the plaintiff/appellant.
The plaintiff's suit for partition was dismissed on contest by holding, inter alia, that the suit is a premature one as the plaintiff has not been able to prove the death of his father through whom he is claiming title in the suit property by inheritance. The learned Trial Judge has held that neither any death certificate has been produced to prove the death of his father nor the civil death of the plaintiff's father has been pleaded and/or proved by the plaintiff in the suit. The legality and/or propriety of the said judgment and decree is under challenge in this appeal before us.
Let us now consider the merit of the instant appeal in the facts of the present case.
Two properties viz. premises No. 8B, 8C & 8D formerly known as premises No. 8, Hazra Lane and presently known as premises Nos. 138, 139, 140 A and 141, Motilal Nehru Road and another premises being No.121A, 121B, 121C, & 121D formerly known as premises No. 121, Mohonpukur Road and presently known as Satyendra Nath Mozumdar Road, were brought in the hotch pot of the said partition suit. Admittedly Gobinda Chandra Das; the grand father of the parties was the original owner of these two properties. It is also an admitted fact that the said Gobinda Chandra Das, during his life-time executed two trust deeds by transferring these two properties to the trustee appointing himself as the first trustee and also by making provision as to how the successive trustees will be appointed on the death of the first Trustee and/or his successor. It was also provided in the trust deed that after the death of the settlor's wife viz., Basanta Kumari and his two sons viz., Dual Chandra Das and Manik Chandra Das, the trust properties will devolve upon the male lineal descendants i.e., the sons of Dulal and Manik. The plaintiff and the defendant No.4 are the sons of Dulal. The defendant No. 1,2 & 3 are the sons of Manik.
The settler/1st Tustee, Gobinda Chandra Das, died on 9th may, 1953. His wife Bansanta Kumari Dasi died on 18th October, 1966. His son Manik Chandra Das died on 16th January, 1988.
The plaintiff alleged in the plaint that his father died without mentioning his date of death. He, thus, claimed that after Basanta Kumari Dasi, Dulal and Manik died, the Trusts came to an end and the trust properties devolved upon the sons of Dulal and Manik . He thus, claimed that the two sons of Dulal viz., the plaintiff and the defendant No.4 jointly inherited half hare in the suit properties and the defendant Nos. 1,2 & 3 inherited half share in the suit properties jointly. Instant suit for partition was filed as the co-sharers felt inconvenience in enjoying the suit properties jointly.
The defendant Nos. 1,2 & 3 contested the said suit by fling written statement. They admitted the title of Gobindababu in the suit properties and execution of the two trust deeds by Gobindbabu but they did not admit the plaintiff's claim for the death of his father viz., Dualalbabu. The plaintiff was called upon to prove the death of his father viz., Dulalbabu. Thus, they denied the death of Dulalbabu and consequently the plaintiff's claim for acquisition of title in the suit properties in terms of the provisions of the Trust deeds was also denied by them. The defendants claimed that the said trusts are still continuing and the sons of Manikbabu are now acting as trustees for managing the trust properties. They thus, prayed for dismissal of the suit for want of plaintiff's locus.
The defendant No.4 supported the plaintiff's claim in his written statement.
The parties adduced evidence in support of their respective claims.
Several issues were farmed by the learned Trial Judge in the said suit. However no issue was framed as to the civil death of Dulal Babu by following provision of Sections 107 and 108 of the Evidence Act. Evidence regarding the untracebility of Dualababu since 1942 has been sought to be brought on record by the proposed amendment before this Court. However, even in the proposed amendment, no relief by way of declaration regarding the civil death of the said Dualbabu has been sought for.
Mr. Probal Mukherjee, learned Senior Counsel appearing for the appellant, criticized the judgment of the learned Trial Judge, as the Learned trial Judge, while coming to the conclusion that the plaintiff has failed to prove the civil death of Dulalbabu, did not consider the evidence of the defendant.
He submitted that though the pleadings regarding civil death of Dulalbabu is lacking in the plaint and no specific issue has been framed on the civil death of Dulalbabu, but still then when the parties proceeded with the trial of the suit by clearly understanding the rival claims of each other regarding the civil death of Dulalbabu and led evidence on such issue independently and also cross- examined the witness of the other side on such dispute, the learned Court below ought not have refused to decide the said issue finally by considering the evidence of both the parties on such dispute. While criticizing the impugned judgment, he drew our attention to the evidence of the witness of the defendant Nos. 1,2 & 3 wherein he admitted that Dulalbabu left the suit house in the year 1942 and he has not seen him since 1942 with a further addition that had he been alive he would have come to the suit premises and both the parties could have come to know about the living status of Dulalbabu.
He thus, submitted that if this part of the evidence of the defendant would have been considered by the learned Trial Judge along with the trust deeds wherein leaving of the suit premises by Dulalbabu in the year 1942 was mentioned and the affidavits of the defendants wherein appointment of the wife of Dulalbabu as trustee was admitted by the defendant, the learned Trial Judge could not have come to the said conclusion.
He further submitted that the learned Trial Judge erred in holding that partition suit cannot be maintained without any declaration as to the civil death of Dulalbabu being sought for in this suit. By referring to the provision of Sectionss 107 & 108 of the Evidence Act, he contended that the said provisions of Section 107 and Section 108 of the Evidence Act do not contemplate any relief being sought for by way of declaration as to the civil death of any person before the Civil Court. According to him, those provisions deal with the circumstances in which death of a person can be presumed.
Even though the merit of the said suit rests on resolution of the said dispute relating to the Civil death of Dulalbabu as devolution of interest on the plaintiff in the suit properties depended on the death of Dulalbabu, but no such issue was framed in this suit.
The plaint assertion regarding death of Dulalbabu is very vague. The plaintiff simply stated in the plaint that the said Dulalbabu died without mentioning the date as to when he died and further as to whether he had natural death or not. However, in course of trial of the suit, the plaintiff tried to establish that his father Dulalbabu remained untraceable and/or was unheard of since the year 1942 and as such he will be presumed to be dead, as he has not been heard of for more than seven years. Thus, the plaintiff wanted to establish the death of Dulalbabu by drawing presumption of death by following the provisions of Sections 107 and Section 108 of the Evidence Act.
After considering the pleadings of the parties and the evidence of the plaintiff the Learned Trial Court held that the plaintiff has failed to prove the death of Dulalbabu as the death certificate of Dulalbabu has not been proved. The learned Trial Judge also refused to draw presumption as to the death of Dulalbabu for the reasons that the plaintiff himself in his evidence stated that he was not sure as to the death of his father. The learned Trial Judge thus dismissed the said suit by holding that the said suit is a premature one as the devolution of Dulalbabu's interest in the suit property on the plaintiff in terms of the provisions of the trust deeds could not be proved by the plaintiff.
To fill up the deficiency in the pleadings regarding the death of Dulalbabu, the plaintiff has filed an application for amendment of his plaint in this appeal. In the proposed amendment, the plaintiff has stated in details as to the time since when Dualalbabu remained unheard of. It is stated therein that Dulalbabu remained unheard of since 1942 and thus the Court was invited to presume the civil death of Dulalbabu.
In support of his submission that no declaration regarding the civil death of Dulalbabu is required to be sought for specifically for maintaining a suit for partition, he has relied upon an unreported Single Bench decision of Bombay High Court in the case of Mr. Santosh Popat Chavan & Ors. V. Mrs. Sulochana Rajiv @ Raju Chavan which was heard along with another second appeal No.405 of 2013 Smt. Kalwati Balasahev Karve & Ors. Vs. Smt. Chanda Haumat Karne.
Though he addressed us on the merit of the said appeal and criticized the impugned judgment but he submitted that for avoiding the unnecessary complication, his client has filed an amendment application and invited this Court to allow the same and remit the suit back to the learned Trial Court on remand for fresh trial.
Mr. Roychoudhury, learned Senior Counsel appearing for the respondent No.3 refuted such submission of Mr. Mukherjee by contending that amendment as prayed for by the appellant cannot be allowed at this stage in view of the proviso added to Order 6 Rule 17 of the Civil Procedure Code. He further argued that the proposed amendments are not subsequent events, and as such, such amendment cannot be allowed after the commencement of the trial of the suit without the reason for the delay in applying for such amendment bing explained by the Appellant. By referring to the amendment application, he tried to convince us that no explanation as to the reason for such delay having been given by the appellant, his prayer for amendment cannot be allowed.
He supported the judgment of the learned Trial Court by contending that without any declaration as to the civil death of Dulalbabu being sought for specifically in the suit, the plaintiff's prayer for partition cannot be allowed. He argued that the decision cited by Mukherjee in this regard, has no application in the present case. Reading the said judgment, he pointed out from the cited decision, that in that case two suits were filed by the plaintiff therein simultaneously. In one of such suits the plaintiff therein prayed for a declaration of the civil death of a person through whom he was claiming title in the suit property and in another suit he prayed for partition. The declaratory suit having been allowed by the Civil Court, before disposal of the Partition Suit, the Bombay High Court held that no further declaration is required to be sought to maintain the partition suit. According to him, the facts of the present case is completely different from the facts of the case in the cited decision and as such the principle laid down therein cannot be applied in the present case.
Mr. Roychowdhury, further contended that the learned Trial Judge did not commit any illegality in not considering the evidence of the parties regarding the civil death of Dulalbabu in details as the plaintiff never claimed in the plaint that Dulalbabu should be presumed to be dead as he was not heard of for more than seven years by the persons who knew him. He pointed out from the plaint that the plaintiff claimed therein that Dulalbabu died, meaning that he had natural death and thus the natural death of such person is required to be proved by documentary evidence which having not been produced by the plaintiff, the learned Trial Judge, according to Mr. Raychowdhury rightly held that the plaintiff has failed to prove the death of Dulalbabu and the partition suit is not maintainable due to its pre-maturity.
He thus supported the judgment and prayed for dismissal of this appeal.
Let us now consider the merit of the impugned judgment in the light of the submission of the learned Advocates of the parties.
Since amendment of the plaint has been sought for by the appellant to overcome the deficiency in the pleading as pointed out by the learned Trial Judge in the impugned judgment, we feel it necessary to consider the Appellant's said application for amendment first as the fate of the suit practically depends upon the fate of the amendment application.
It is no doubt true that by introducing the proviso in Order 6 Rule 17 of the Civil Procedure Code, a restriction was imposed upon the party seeking amendment after commencement of trial of the suit. Proviso to Order 6 Rule 17 of Civil Procedure Code says that no such amendment for introducing the Pre-existing facts can be allowed to be introduced after commencement of trial of the suit unless the reason for the delay in applying for such amendment is satisfactorily explained even though it is found that the proposed amendment is necessary and it satisfies the condition mentioned in the parent provision of Order 6 Rule 17 of the Code. But in our reading the said provision as a whole, we feel that if the proposed amendment is found to be necessary cannot be rejected always by applying the proviso strictly simply because of the reason that such amendment is sought for after the commencement of the trial of the suit, without the reason for such delay in applying for such amendment being explained. Take the example of a circumstance where the reason for such amendment is necessitated due to some events which occurred subsequent to the commencement of the trial of the suit. In such cases amendment cannot be rejected by applying the proviso. Of course it is trite law that introduction of any preexisting facts by way of amendment to raise a new dispute between the parties after the commencement of trial of the Suit, cannot be allowed even if the proposed amendment is found to be necessary in the light of the provision of Order 6 Rule 17 unless the condition imposed in the proviso is satisfied. But where an issue has already been raised by the parties in their respective pleading, Can the Court reject the prayer for amendment which is clarificatory in nature and is sought for introducing better particulars relating to an issue already raised in the suit for want of proper explanation relating to delay in filing such application? In our considered view, justice cannot be rendered to the parties if Clarificatory and/or explanatory amendment relating to an existing dispute raised in the suit by the parties is not allowed by applying the proviso strictly. Civil Procedure Code is the handmade of justice dealing with the procedural law which in any event cannot be used as stumping block for rendering justice to the parties in suitable circumstances.
Let us now consider the appellant's application for amendment in the light of our above observations.
Here is the case where we find that death of Dulalbabu has been pleaded by the plaintiff in the plaint. The Defendant Nos. 1,2 & 3 denied the factum of death of Dulalbabu in their written statement. Thus, an issue as to the death of Dulalbabu has already been raised in the suit. Though such issue has not been framed in the suit specifically, but the parties have participated in the trial of the suit and they led evidence either to prove or disprove the factum of the civil death of Dulalbabu, while examining their witnesses and/or cross-examining the witnesses of their redressing.
Of course we find that the learned Trial Judge did not consider the evidence of all the parties in this regard in his judgment. As such the judgment was criticized by the appellant. But in our considered view, such criticism is not fair as it is well settled principle of law that no amount of evidence beyond pleading can be considered by the Court for resolving any dispute. Though the factum of death of Dulalbabu is pleaded in the plaint but pleading regarding drawing of presumption relating to his civil death is absent in the pleading. As such, we hold that the learned Trial Judge did not commit any illegality in holding that in the absence of any such specific pleading in this regard, civil death of Dulalbabu cannot be declared by following the provision of Section 107 & 108 of the Evidence Act. however, we have some reservations to agree with the learned Trial Judge who held that presumption regarding the civil death of Dulalbabu cannot be drawn in this case as no such relief by way of declaration is sought for in the suit specifically.
In this regard we have considered the provision of Section 107 and Section 108 of the Evidence Act which deal with the circumstances as to when presumption relating to the civil death of a person can be drawn. If conditions relating to drawing of such presumption relating to the civil death of a person are satisfied as per the provisions of the Evidence Act, in our considered view, then the Court can draw presumption relating to the death of such person in the suit for partition, even if no such declaration is sought for in the suit specifically. As a matter of fact, prayer for declaration relating to the title of the parties is inbuilt in the partition suit and the dispute relating to the title of the parties cannot be resolved without the dispute relating to the death of Dulalbabu being resolved in this suit, particularly when the title of Dulalbabu in the suit property is admitted by the defendants. . As such we hold that the suit cannot fail for want of the relief being prayed for by way of declaration relating to the civil death of Dulalbabu in the plaint.
When in this background, the plaintiff/appellant has applied for amendment of his pleading to remove the deficiency in his pleading as pointed out by the learned Trial Court, we hold that introduction of such a clarificatory and/or explanatory amendment for drawing presumption relating to the civil death of Dulalbabu, cannot be disallowed by applying the proviso to Order 6 Rule 17 of Civil Procedure Code, particularly when we find that the factum of death of Dulalbabu is already an issue in the suit and the parties participated in the trial of the suit by understanding the purports of the issue relating to the civil death of Dulalbabu which is involved in the suit.
We also find here that some explanation for delay in applying for such amendment has been given in the said application and in our view such explanation is not altogether unworthy of reliance. We also hold that such lacuna in the pleading cannot stand as a stumping block in rendering justice to the parties particularly in the partition suit where there is recurring cause of action and any co-sharer can file a fresh suit by presentation of a plaint by alleging civil death of Dulalbabu. We thus hold that the proposed amendment is necessary for resolving the dispute relating to the death of Dulalbabu finally in this suit, and further since the proposed amendment is clarificatory in nature relating to a pre-existing dispute between the parties already raised in the suit, such amendment cannot be disallowed by applying the proviso to Order 6 Rule 17 CPC.
As such we permit the plaintiff/appellant to amend his pleading in the manner he has prayed for in the schedule of the proposed amendment. The application for amendment is thus allowed. The learned Trial Judge is directed to allow the plaintiff to present the amended plaint by incorporating the proposed amendment therein within the time to be fixed by the learned Trial Judge. The plaintiff/appellant is directed to serve copy of the amended plaint upon the defendants immediately after such amendment is carried out.
Leave is granted to the defendants to file additional written statement to deal with such amended pleading of the plaintiff within the time to be fixed by the learned Trial Court.
The suit is thus, remanded back to the learned Trial Court for fresh trial in the light of the amended pleadings of the parties. The learned Trial Judge is thus directed to decide the said suit afresh in the light of the amended pleadings of the parties and by taking into account the evidence of the parties already on record and evidence which may be further led by the parties in the suit.
The appeal is thus allowed.
The impugned judgment and decree are set aside.
The learned Trial Judge is requested to depose of the suit as early as possible without granting any unnecessary adjournment to the parties.
Urgent Photostat certified copy of the judgment if applied for be given to the parties, as early as possible.
(Jyotirmay Bhattacharya, J.) I agree (Shib Sadhan Sadhu, J)