Calcutta High Court (Appellete Side)
Sri Dhananjoy Singha vs Smt. Kalyani Samanta & Anr on 6 December, 2013
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O. No. 3437 of 2013 Present :
The Hon'ble Mr. Justice Prasenjit Mandal Sri Dhananjoy Singha.
Versus Smt. Kalyani Samanta & anr.
For the petitioner: Mr. B. Ghosal.
For the opposite party: Mr. S.P. Roychowdhury, Mr. Debjit Mukherjee, Ms. Susmita Chatterjee.
Heard On: 25.11.2013.
Judgement On: December 6, 2013.
Prasenjit Mandal, J.: This application is at the instance of the defendant and is directed against the Order No.215 dated August 16, 2013 passed by the learned Civil Judge (Junior Division), 2nd Court, Howrah in Title Suit No.28 of 1996 thereby rejecting an application for amendment of the written statement.
The plaintiffs/opposite parties herein instituted the aforesaid suit for ejectment, recovery of possession, mesne profits and other reliefs against the petitioner herein on the ground of reasonable requirement, default violation of Clause (m), (o), (p) of Section 108 of the Transfer of Property Act and for building and re- building.
The defendant entered an appearance in the said suit and filed a written statement denying the material allegations raised in the plaint. He filed an application under Section 17(2) & (2A) of the West Bengal Premises Tenancy Act. Subsequently, the defendant filed an application for amendment of the written statement at the stage of peremptory hearing of the suit and that application was rejected by the impugned order. Being aggrieved, the defendant has preferred this application.
Now, the question is whether the impugned order should be sustained.
Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the suit is one for ejectment, recovery of possession, mesne profits and other reliefs on the grounds stated therein and the said suit is pending since 1996. The matter under consideration is amendment of the written statement contending the validity of the deed of sale and the deed of gift contending, inter alia, that the plaintiff no.1 is a citizen of USA and she had transferred the premises in suit in favour of the plaintiff no.2 without any valid permission and as such, the said transfer is void and no ownership had been transferred in favour of the plaintiff no.2 and such fact came to the defendant subsequently and so, the amendment has been sought for.
Mr. B. Ghosal, learned Advocate appearing for the petitioner, has contended that so far as the deed of sale and the deed of gift are concerned, the plaintiff no.1 being a citizen of USA, according to the provisions of Section 31 of the Foreign Exchange Regulation Act, 1973, permission of the Reserve Bank is required before acquisition or holding of immovable property in India by a foreigner and thus, he has contended that ownership over the premises in suit as claimed by the plaintiffs is not sustainable at all and the suit is liable to be dismissed and so, such contention must be incorporated in the written statement for proper adjudication of the matter in dispute.
In support of his submission as to allow the application for amendment, Mr. Ghosal has referred to the following decisions:-
i) Ragu Thilak D. John v. S. Rayappan & ors.
reported in (2001) 2 SCC 472 and thus, he has submitted that The amendment sought for should not have been rejected - The dominant purposes of the amendment is to minimise the litigation
- Even whether the contention is barred by limitation is to be decided later on after allowing the amendment sought for.
ii) Shyamal Mitra Mustafi v. G. Saggi reported in 93 CWN 631 and thus, he has submitted that inconsistent pleading is permissible and when the amendment is necessary for determining the real question in controversy between the parties, the Court is obliged to allow the amendment.
iii) Baldev Singh & ors. v. Manohar Singh & anr.
reported in (2006) 6 SCC 498 particularly the paragraph no.8 and thus, he has submitted that while dealing with the amendment matter, the Courts should be extremely liberal in granting the prayer for amendment of the pleadings unless serious injustice or irreparable loss is caused to the other side.
iv) Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale (Dead) & ors. reported in (2007) 6 SCC 737 particularly the paragraph nos.17 & 19 and thus, he has submitted that even the belated amendment may be allowed to enable the Court to adjudicate upon it more satisfactorily and compensation for delay may be made by awarding costs and as such, the defendants are entitled to file additional written statement to the amended plaint.
v) Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon reported in AIR 1969 SC 1267 particularly the paragraph no.6 and thus, he has submitted that the amendment should be allowed when it appears to be in order to assist the Court in determining the real question or issue between the parties. He has also submitted that all amendments should be permitted as may be necessary for the purpose of determining the real controversy between the parties unless by permitting the amendment, injustice may result to the other side.
On the other hand, Mr. S.P. Roychowdhury, learned Senior Advocate appearing for the plaintiffs/opposite parties, has contended that though the suit for ejectment on the ground of, inter alia, reasonable requirement was filed in the year 1996, the suit could not be disposed of as the defendant/petitioner has taken dilatory tactics to prolong the litigation so as to frustrate the plaintiffs and the amendment as sought for is not at all necessary for solving the dispute between the landlords and the tenant as in the instant case. Thus, he has contended that this application should be rejected.
Having due regard to the submissions of the learned Advocates of both the sides, I find that the decisions referred to by Mr. Ghosal relate to the general principal of amendment of the pleadings and the sum and substance of such decisions is to the effect that the amendment should be allowed in all cases in order to determine the real questions in controversy and unless, the same will cause prejudice to the other side and the compensation by awarding costs are not enough in the situation. Though, the suit was filed in the year 1996 even the examination of the P.W.1 on behalf of the plaintiffs could not be completed as yet.
While defending the suit, the defendant has contended that the statements of the plaintiffs in paragraph nos.1 to 4 which relate to devolution of interest by inheritance as well as by deeds are more or less matter of record and those matters which are not tallied with the record are deemed to be denied and so called gift deed dated September 12, 1994 is, mala fide, illegal and is, therefore, denied.
The plaintiffs have described in paragraph no.5 of the plaint that the plaintiff no.1 sold out the suit property in favour of the plaintiff no.2 by a sale deed dated March 3, 2004 and the defendant has contended that such statements are correct vide paragraph no.9 of the written statement.
The defendant has also admitted in paragraph no.10 that the plaintiff no.1 and her husband at present are staying in USA, but, their claim of personal requirement of the suit premises is mala fide and false one. He did not raise any objection in the written statement as to the deed of gift by which the plaintiff no.1 became the owner of the suit premises. The learned Trial Judge has rightly held that from the written statement it cannot be held that during the pendency of the suit, the defendant came to know that the plaintiff no.1 is a resident of USA.
As recorded earlier, the dispute is between the landlords and a tenant and the defendant has admitted in his written statement that the plaintiffs are his landlords. The defendant has categorically admitted that he is a monthly tenant in respect of the suit premises under the plaintiffs at a monthly rental of Rs.650/-. So, after such admission, the defendant cannot be permitted to challenge the legality and validity of the deed of gift of 1994 and the deed of sale of 2004. The amendment is nothing but appearing to have been filed with the sole purpose to drag the matter for an unending period.
Thus, from the materials on record, it appears that such fact of deed of gift or the sale was not unknown to the defendant/petitioner herein. But, the amendment has been sought for to that line challenging the legality and the validity when the suit is at the stage of recording evidence of the P.W.1. From the record it reveals that the defendant filed several applications challenging the right, title and interest of the plaintiff no.2 by the deed of sale, application for stay of the suit, etc., and those applications were rejected.
The defendant can, no doubt, take alternative defence or may submit an explanation to the admission given by him earlier, but, he cannot be permitted to set up another inconsistent defence which is destructive of the admission as recorded above. So, it is clear that such amendment at the stage of trial has been sought for in order to drag the suit so that the object of filing of the suit to get the premises back on the ground stated may be frustrated. So, in my view, the amendment is not at all necessary for determining the real question of controversy between the parties.
Therefore, if the amendment is allowed at such belated stage, the plaintiffs will certainly be prejudiced and such prejudice cannot be compensated by monetary relief and this has been rightly recorded by the learned Trial Judge.
Accordingly, in my view, the learned Trial Judge has rightly rejected the application for amendment of the written statement with costs. The impugned order should, therefore, be sustained.
The application is, therefore, dismissed. However, there will be no order as to costs. The learned Trial Judge is directed to proceed with the suit for further hearing and he shall not grant any adjournment to either of the parties except in extreme emergent cases. In any way, he shall dispose of the suit within 3 months from the next date of peremptory hearing to be fixed by him.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)