Calcutta High Court
Prahlad Rai Dhanania Alias Agarwal vs Narayani Devi Dhanania Aias Agarwal & ... on 2 December, 2016
Author: R.K. Bag
Bench: Ranjit Kumar Bag
ORDER SHEET
G.A. No. 3447 of 2016
C.S. No. 120 of 2011
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
PRAHLAD RAI DHANANIA ALIAS AGARWAL
Versus
NARAYANI DEVI DHANANIA AIAS AGARWAL & ORS.
BEFORE:
The Hon'ble JUSTICE RANJIT KUMAR BAG
Date : 2nd December, 2016.
For Plaintiff : Mr. Sudip Deb with Mr. Debayan Ghosh, Advs.
For Defendant No.10 : Mr. Sabyasachi Chowdhury with Mr. Jishnu Chowdhury, Mr. Srenik Singhvi, Ms. Sananda Ganguli & Mr. Shubradip Ray, Advs.
The plaintiff/petitioner has prayed for amendment of the plaint on the ground that the proforma defendant no.11 sold out his share in the premises no.46A and 46B Theatre Road (presently known as 46 Shakespeare Sarani) (hereinafter referred to as the suit property) to the defendant no.10 by one registered deed of conveyance on May 9, 2012 and as such the plaintiff has a right to get relief against the said proforma defendant no.11. The plaintiff 2 has prayed for impleading the proforma defendant no.11 as the defendant no.11 and has also sought for incorporating paragraphs 22(a) and 22(b) in the plaint by way of amendment.
Mr. Deb, learned Counsel for the plaintiff, contends that the plaintiff has his share in the suit property. He further contends that the defendants sold out some portion of the suit property to the defendant no.10 without giving notice of the said sale to the plaintiff and thereby the plaintiff has the preferential right to pray for pre-emption under Section 22(1) of the Hindu Succession Act, 1956. Mr. Deb argues that the proforma defendant no.11 also sold out his share in the suit property in favour of the defendant no. 10 by a registered deed of conveyance on May 9, 2012 during the pendency of the suit and as such the petitioner has a right to pray for pre-emption from the defendant no.11 under Section 22(1) of the Hindu Succession Act, 1956. He also argues that the present amendment needs to be allowed to avoid multiplicity of proceedings as the petitioner has right to get relief against defendant no.11 who has now become necessary party to the suit. By referring to Articles 56 and 58 of the Limitation Act, 1963 and by referring to the prayer portion of the plaint, Mr. Deb submits that the plaintiff has instituted this declaratory suit against the defendants and as such 3 the period of limitation will be three years from the date of accrual of cause of action. The specific submission of Mr. Deb is that the Court will not go into the merit of the application for amendment of the plaint at this stage of hearing of the amendment application. The further specific submission of Mr. Deb is that the issue of limitation is the mixed question of fact and law and as such the Court cannot decide the issue of limitation without delving deep into the domain of facts after recording the evidence of both parties. Relying on the decision of the Supreme Court on "Pankaja & Anr. V Yellappa (D) by L.R.s & Ors." reported in AIR 2004 SC 4102, Mr. Deb submits that the Court should allow the application for amendment of the plaint without considering the issue of limitation at this stage and the said issue of limitation can be decided at the time of final hearing of the suit.
Mr. Chowdhury, learned Counsel for the defendant no.10, contends that the plaintiff was aware of the deed of conveyance executed by the defendant no.11 in favour of the defendant no.10 at least on May 8, 2013 when the defendant no.10 filed the written statement in the Court. The contention of Mr. Chowdhury is that the plaintiff has prayed for asserting his right in the suit property by way of pre-emption under Section 22(1) of the Hindu Succession 4 Act, 1956. He elaborates his submission by stating that the present declaratory suit of the plaintiff cannot be considered as a suit under Section 34 of the Specific Relief Act, because Article 97 of the Limitation Act will be attracted in ascertaining the right of the plaintiff for pre-emption and the present application for amendment is clearly barred under Article 97 of the Limitation Act. Relying on the same decision of "Pankaja & Anr. V. Yellappa (D) by L.R.s & Ors.", Mr. Chowdhury argues that the Supreme Court has not categorically stated in the said decision that the Court will allow the application for amendment of the plaint even if the application is barred by limitation on the date of filing the application before the Court.
On perusal of the plaint I find that the plaintiff has instituted the suit praying for declaration that the registered deed of conveyance dated March 11, 2011 executed by the defendant nos. 1 to 9 in favour of the defendant no.10 is void and for cancellation of the said deed. The plaintiff has pleaded that the plaintiff has right to pre-empt the share of the suit property from the defendant No.10. It is true that the Court will not go into the merit of the application for amendment of the plaint at the time of hearing of said the application. The question for consideration of the Court is 5 whether the present application for amendment of the plaint is barred by any specific provision of the Limitation Act and whether the court can allow the application for amendment by keeping open the issue of limitation for decision at the stage of final hearing of the suit. Admittedly, the defendant no.11 has transferred his share in the suit property in favour of the defendant no.10 by registered deed of conveyance on May 9, 2012 during the pendency of the suit. The present application for amendment of the plaint is filed by the plaintiff on November 25, 2016. On perusal of the averments made by the petitioner in paragraph 3 of the application for amendment of the plaint, I find that the plaintiff was aware about filing of the written statement by the defendant no.10 and the fact of amendment of the said written statement. By referring to paragraph (xix) of the written statement filed by the defendant no.10, Mr.Chowdhury, learned counsel has urged this Court to consider that the defendant No.10 disclosed the fact of purchase of the share of the suit property from the defendant No.11 by registered deed of conveyance on May, 9, 2012 and that the plaintiff were aware of the said registered deed of conveyance on May 8, 2013 when the written statement was verified and submitted in the Court, and as such the application for 6 amendment of plaint is filed after three years from the date of knowledge of the plaintiff.
Mr.Deb, learned counsel for the plaintiff has vehemently urged that nothing is on record to indicate that the copy of the written statement was served on the plaintiff on or before May 8, 2013. In the absence of any material on record to indicate that the written statement filed by the defendant no.10 was served on the plaintiff on or before May 8, 2013, it will not be wise and prudent on my part to hold that the plaintiff was aware of the contents of the written statement of the defendant no.10 wherein the defendant No.10 disclosed the fact of purchase of share of defendant No.11 in the suit property by registered deed of conveyance dated May 9, 2012. The logical inference of my above observation is that the materials on record do not indicate that the plaintiff was aware of the transfer of share of the suit property by the defendant no.11 in favour of the defendant no.10 by registered deed of conveyance on May 9, 2012 when the written statement was filed by the defendant no.10 on May 8, 2013.
On consideration of the entire pleading of the plaintiff including the prayer made in the plaint, I find that the plaintiff has prayed for declaration about the deed executed by the defendant 7 nos.1 to 9 in favour of the defendant no.10 on March 11, 2011 and cancellation of the said deed as per provision of Section 31 of the Specific Relief Act, 1963 on the ground that the plaintiff-petitioner has a right to pre-empt the share of the suit property transferred in favour of the defendant no.10 under Section 22(1) of the Hindu Succession Act, 1956. The plaintiff, thus, can enforce the right of pre-empt within a period of one year from the date of registration of the deed or from the date of delivery of share of physical possession of the suit property as per provision of Article 97 of the Limitation Act, 1963. Since the plaint is to be construed as a whole and since the plaintiff has instituted the suit for declaration of an instrument and cancellation of an instrument, the provisions of Article 56 or Article 58 or Article 59 of the Limitation Act, 1963 can be attracted in the facts of the present case. In the instant suit, the plaintiff filed the application for amendment of the plaint on November 25, 2016 and in the absence of any material on record, it cannot be held that the plaintiff was aware of the fact of transfer of share of the suit property by the defendant no.11 in favour of the defendant no.10 by registered deed dated May 9, 2012 on May 8, 2013. So the application was not filed by the plaintiff after lapse of three years as 8 contemplated either under Article 56 or under Article 58 or under Article 59 of the Limitation Act, 1963.
While mere delay in filing the application for amendment of the pleading is no ground for rejecting the amendment, the Court will have to decide very meticulously when the other side has taken the plea of limitation. Where it is clear from the facts of the case that the plea raised by way of amendment of the plaint is time barred on the date of filing of application for amendment, it will be prudent on the part of the Court to refuse the amendment. On the other hand, where the Court feels that it is not possible to determine with certainty and without evidence on the face of the pleadings and materials already on record whether the proposed amendment is or is not barred by limitation, the Court may not shut out an amendment sought for by the party.
In "Pankaja and Anr. V. Yellppa (supra) cited by learned counsel of both the parties, the Supreme Court has held in paragraph 14 as follows:-
"14. The law in this regard is also quite clear and consistent that there is no absolute rule that in every case where a relief is barred because of limitation an amendment should not be allowed. Discretion in such cases depends on the facts and circumstances of 9 the case. The jurisdiction to allow or not allow an amendment being discretionary the same will have to be exercised in a judicious evaluation of the facts and circumstances in which the amendment is sought. If the granting of an amendment really subserves the ultimate cause of justice and avoids further litigation the same should be allowed. There can be no straight jacket formula for allowing or disallowing an amendment of pleadings. Each case depends on the factual background of that case."
By applying the above proposition of law in the facts of the present case I find that the plaintiff should be given opportunity to implead the defendant No.11 against whom he has a right to get relief. However, the issue of limitation is left open for decision at the time of final hearing of the suit.
In the instant case, there is inordinate delay on the part of the plaintiff to file the application for amendment of the plaint, even if I hold that the plaintiff might have learnt about the transfer of share of the suit property by the defendant no.11 in favour of the defendant no.10 after May 8, 2013. However, the plaintiff-petitioner will be compelled to institute another suit against the defendant nos.10 and 11 to enforce the right of pre-emption and thereby there will be multiplicity of proceedings. To avoid the multiplicity of 10 proceedings, I am inclined to allow the amendment of the plaint in spite of inordinate delay. The plaintiff is bound to compensate the defendant no.10 for the inordinate in filing the application. Accordingly, the application for amendment of the plaint is allowed subject to payment of cost of Rs.51,000/- by the plaintiff to the defendant no.10 within a period of two weeks from this date, in default the application stands rejected. G.A.No.3447 of 2016 is thus, disposed of.
List the matter under the heading "For Orders" on December 19, 2016.
(R.K. BAG, J.) K. Banerjee & S. Bhattacharyay A.Rs. [C.R.]