Calcutta High Court
Sachin Bera vs Bina Pal on 27 August, 2004
Equivalent citations: 2005(2)CHN425, 2004 A I H C 4254, (2005) 1 ICC 676 (2005) 2 CAL HN 425, (2005) 2 CAL HN 425
JUDGMENT Arun Kumar Mitra, J.
1. This appeal has been preferred challenging the order of remand being Order No. 42 dated 22.8.1991 passed by the learned IIIrd Court of Assistant Judge, Howrah in T.A. No. 119 of 1986, setting aside the judgment and decree passed by the learned Munsif in T.S. No. 105 of 1985.
2. The plaintiff made out a case in the plaint that the plaintiff is the owner of the premises No. 24, Debendra Ganguly Road, P.S. Shibpur and the defendant was a licensee under plaintiff with regard to a tea stall on the southern verandah particulars of which is described in the schedule to the plaint. Originally the defendant was a licensee under the plaintiff. At the time of talk of purchase of the suit property, this defendant allegedly assured the plaintiff to remove the business from the suit stall. According to the plaintiff she purchased the suit holding on 27.5.1981 and on the request of the defendant the plaintiff allowed the defendant two months time i.e. to remain there as a licensee for two months.
3. According to the plaintiff, the defendant did not vacate the suit premises within these two months in spite of repeated requests. The plaintiff thereafter sent notice by Registered Post with Acknowledgement Due directing the defendant to quit and vacate the suit property i.e. the tea stall within 15 days from the receipt thereof. But nothing developed and accordingly plaintiff filed this suit.
4. The defendant contested the suit by filing written statement denying all material facts as made out in the plaint stating inter alia that the suit is not maintainable and he was never a licensee under the plaintiff. The defendant also alleged that he is a premises tenant under one Santi Prasad Banerjee, the vendor of the plaintiff. He occupies the suit room as a tenant at a monthly rental of Rs. 10/- and he regularly paid to the Manager of the Estate of Sri Santi Prasad Banerjee, there is no cause of action for the suit and he prays for dismissal of the suit.
5. The plaintiff by way of amendment of the plaint incorporated that the defendant started a small business in a wooden Goomti as a licensee sometime in early part of 1978, during the calamities before puja vacation of 1978. On consideration of these allegations and counter allegations made out in the plaint and written statement the following issues were framed.
1) Is the suit maintainable in its present form ?
2) Is the notice duly served upon the defendant ? If so, is the same legal, valid and sufficient ?
3) Is the defendant, a licensee under the plaintiff ?
4) Is the plaintiff entitled to get a decree, as prayed for ?
5) To what other relief, if any, the plaintiff is entitled ?
6. The learned Munsif dismissed the suit on contest with costs.
7. The plaintiff preferred appeal. In the Appellate Court the plaintiff filed two applications, one for amendment of the original plaint and the other under Order 41 Rule 27 of the Code of Civil Procedure for adducing additional evidence consequent to the supposed allowance of the earlier petition for amendment of the plaint.
8. The defendant vehemently contested these two applications.
9. The learned First Appellate Court after hearing the learned Counsel for the parties, set aside the order of the learned Munsif in T.S. No. 105 of 1985, and allowed the appeal on contest with costs.
10. The learned First Appellate Court sent back the suit on remand for fresh trial in the light of the observations made in the said Order No. 42 of 22.8.1991.
11. The learned Counsel for the appellant submitted that the learned Appellate Court below passed a wrong order by sending the matter on remand when all the issues have been decided by the learned Munsif.
12. The learned Counsel for the appellant in this regard relied on a Single Bench decision of this High Court reported in 1996(2) CLJ 541, Surendra Nath Roy v. Gobinda Chandra Dutta and Ors.
13. In this judgment the learned Single Judge of this High Court held that the Trial Court when decided the suit on merits after deciding all the issues framed there on the basis of the pleadings, there was no scope for the learned Judge in the matter to proceed under Order 41 Rule 23. It was also held in the said judgment that the Trial Court could not also proceed under Order 41 Rule 23(A) as he did not consider the findings of the learned Munsif made on all the issues framed in the suit. The learned Judge has not also proceeded under Order 41 Rule 24 or 25, CPC. It was further held that in that view of the matter such an order of remand is per se bad in law and cannot be allowed to stand, the learned Single Judge in that judgment also observed that the learned Additional District Judge concerned in that matter has allowed the applications filed by the plaintiff/respondent under Order 41 Rule 27 without proper appreciation of the provisions contained in Order 41 Rule 27 which specifies the circumstances in which production of additional evidence is to be permitted Appellate Court.
14. The learned Counsel for the appellant submitted that in view of the aforesaid judgment passed by the Single Judge of this High Court, when all the issues have been decided by the learned Munsif, the Appellate Court below should have remanded the matter back.
15. The learned Counsel for the appellant then relied on a decision reported in AIR 1992 Delhi, Page 192, Union of India and Anr. v. Major K.K. Taneja.
16. In this judgment the Hon'ble Division Bench of Delhi High Court made the following observations in paragraphs 20, 21, 23 which are quoted hereinbelow :
"20. It is well-settled that the Court is not bound under the circumstances mentioned in the rule to allow additional evidence and the parties are not entitled as of right to the admission of such evidence. The matter is entirely in the discretion of the Court, but this discretion has to be exercised judicially."
"21. As observed earlier, in this case the attitude of the appellant has all through been callous, and the Court under the circumstances will be justified in refusing permission to file documents by way of additional evidence. This provision cannot be used to fill up lacunae in the case. Now that they have lost the case on this ground, the appellant wants to produce the document. In case Roop Chand v. Gopi Chand Thalia, , the Division Bench refused to accede to the request of the respondents for the filing of additional evidence even though it consisted of documents coming from the official custody. While rejecting this prayer, the Court observed (at p. 1420 of AIR) : --"
"23. In this view of the matter, we have no hesitation in dismissing the application C.M. 157/88."
17. The learned Counsel for the appellant then relied on a decision of the learned Single Judge , Gavala Ankamina and Ors. v. Gavala Mahalaxmi and Ors.
18. In this judgment in paragraph 7 the learned Single Judge observed that the power under Order 41 Rule 27 should be exercised cautiously and sparingly and it should be proved that the additional evidence sought to let in was not available at the trial. The rule does not authorise the admission of additional evidence for the purpose of removal of lacunae and filling in gaps in evidence.
19. The learned Counsel for the appellant then relied on a judgment passed by the Hon'ble Division Bench of this High Court reported in 1998(2) CLT 330, Mahadeb Roy v. Sikha Das and Ors.
20. In this judgment the Hon'ble Division Bench of this High Court presided over by Hon'ble Justice S.B. Sinha (as His Lordship then was) has observed that "no statement has been made in the appellant's applications under Order 41 Rule 27 of the CPC that the alleged documents produced before the Court for the first time for the purpose of showing that at the relevant time the bus was at Kalindi was not within the knowledge of the appellant and the same has been discovered subsequently. It is, however, well-known that no party can be permitted to adduce additional evidence for the purpose of filing up lacunae in his case. Furthermore, a judgment of acquittal passed by a Criminal Court is not very much relevant for the purpose of grant of compensation in motor accident case filed under Section 110(a) of the Motor Vehicles Act, 1939."
21. The learned Counsel for the appellant submitted that the Appellate Court below should have dismissed the appeal and should not have sent the matter on remand. The Appellate Court below ought to have considered that all the issues rightly or wrongly have been decided by the learned Munsif and in that view of the matter the remand order is bad.
22. The learned Counsel for the respondent/plaintiff submitted that there is no limitation insofar as application under Order 6 Rule 17 is concerned and amendment should not be refused on technical grounds.
23. The learned Counsel in this regard relied on a decision , Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon and Ors.
24. In this judgment the Hon'ble Apex Court observed that there is no limitation insofar as amendment application is concerned. Paragraph 8 of this judgment of the Hon'ble Apex Court is quoted hereinbelow for the discussional convenience.
"8. Since the name in which the action was instituted was merely a misdescription of the original plaintiff, no question of limitation arises; the plaint must be deemed on amendment to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted."
25. The learned Counsel for the appellant then relied on another decision of this High Court reported in AIR 1978 Calcutta page 299, I. T. C. Ltd. v. M. M. P. Lines Pvt. Ltd. and Ors.
26. The learned Counsel for the appellant relied on the observations made in paragraphs 1 and 2 of this judgment which are quoted hereinbelow :
"1. This is an application for amendment of the plaint. The suit in question was filed on 25th June, 1974. The Master's Summons for the application for amendment of the plaint was taken out on 25th June, 1977. The summons was made returnable on the 4th July, 1977 and on the 4th July, 1977 directions for affidavits were obtained from the Court. The suit is by the plaintiff, I.T.C. Ltd. against seven defendants. The main defendant, however, is the defendant No. 1 and the plaintiff alleged that the defendant No. 1, of which the defendant Nos. 2 and 3 are the Directors and gurantors, had borrowed some money and the plaintiff had agreed to lend and advance to the defendant No. 1 the said moneys on, inter alia, the terms that they would pledge two trawlers to the plaintiff as security for repayment of the amounts advanced. Both the trawlers were insured with the National Insurance Company Ltd. being the defendant No. 5 herein. The material fact for the present purpose is that one of the trawlers viz. Akashi Maru was lost on 15th September, 1973. It is alleged that on 30th October, 1973 the plaintiff wrote to the defendant No. 5 about the assignment of the policies of the insurance in favour of the plaintiff and claimed damages payable under the insurance policies. On 3rd November, 1973 the defendant No. 5 wrote back to say that the defendant No. 5 was not informed about the assignment of the policies. Thereafter the suit was filed as I have mentioned before, on the 25th June, 1974 and there was an order of injunction restraining the insurance company from making any payment to the defendant No. 1. In opposition to that application on 27th June, 1974 on behalf of the defendant No. 5 a statement was made in Court stating that in respect of Akashi Maru the amount covered by the policy had been paid to the defendant No. 1. Originally the plaintiff in the suit had claimed, inter alia, a decree for specific performance against the first defendant and a declaration that the plaintiff is entitled to a lien 6r charge on the trawlers to secure the said amount of Rs. 5,22,000/- and a further declaration, inter alia, that the plaintiff is entitled to the benefit of the insurance policies mentioned in para 8 of the plaint and to any moneys payable thereunder and such moneys are charged with liability for payment of the plaintiff's claim and for other relief to which it is not necessary for me to refer for the purpose of this application."
"2. In the proposed amendment, the plaintiff seeks to amend the plaint by stating that payment made by the 5th defendant had been made with knowledge of the assignment and was therefore illegal and made fraudulently and in collusion with the first and the fifth defendants. Consequently the plaintiff has sought to amend the prayers in the plaint by asking a declaration that the payment made by the fifth defendant under the policies has not discharged the fifth defendant of its liability to pay the plaintiff and a decree to pay Rs. 5 lakhs or Rs. 3 lacs as to be determined by this Court."
27. The learned Counsel submitted that when an application under Order 41 Rule 27 has been filed, that should be dealt in accordance with law and the party should be given a chance so that the additional evidence can be considered.
28. The learned Counsel for the respondent made reference to the provisions of Order 41 Rules 24 and 25 of CPC in this regard also.
29. The learned Counsel for the respondent then relied on a decision , Md. Salih Sahib v. T.C. Adam Sahib.
30. The learned Single Judge of Madras High Court in this judgment detailed the test for allowing amendment and clarified when amendment of pleadings should be allowed. Paragraphs 6, 9 and 13 of this judgment are quoted herein-below for discussional convenience.
"6. Order VI, CPC deals with pleadings generally. Rule 17 of that order defines the powers of the Court in the matter of amendment of pleadings. This rule easily falls into two distinct parts, in terms of language as well as of subject-matter. The rule, by its first limb, confers a discretion on the Court to permit any party to a suit to amend his pleadings in such manner and on such terms as the Court may deem just. The language of the rule, in this part, is that which the Legislature usually employs for conferring purely discretionary powers. The expression used is 'the Court may ............' The discretion as enacted in this part is, however, widely worded. The rule provides that amendment of the pleadings may be permitted by the Court at any stage and in any manner that the Court may deem just. In granting the amendment, the Court may put the parties on any terms that it may deem just.
The second limb of Rule 17 is, in terms, mandatory. Mark the use of the word 'shall' in this part of the rule, which provides that the Court shall make or permit all amendments to the pleadings as may be necessary for the purpose of determining the real questions in controversy between the parties. On the language of Rule 17, as analysed above, it seems to me to be clear that once the Court is satisfied that the amendment asked for the purposes of proposing or determining the real questions in controversy between the parties, there is really no discretion at all for the Court in the matter, and such amendments must be granted as of course. But the rule itself indicates very plainly that amendments of pleadings which may be found necessary for bringing out the real question in controversy are not the only kind of amendments which the Code contemplates. There may be amendments of other sorts which parties might desire to make in their pleadings. Rule 17 recognises the scope for all these amendments of the other sort, and leaves them to be dealt with by the Court at its absolute discretion. The only indication in the rule as to how the Court's discretion is to be exercised is found in the use of the words 'in such manner and on such terms as may be just'.
9. I derive from the above case the principle that amendment to the pleadings cannot be turned down by Courts merely on the score that they introduce an inconsistent plea or a new cause of action. The true test is whether the amendment is foreign to the subject-matter of the suit, and if not, whether it would be in the interest of justice to grant it.
13. The learned District Munsif had refused the amendment on the one and only ground that it would import into the suit a new cause of action. There is no doubt it does. That, however, can hardly be a ground for rejecting the amendment, as I have endeavoured to show both on the authorities and on the language of Order 6 Rule 17. The decision of the learned District Munsif is based on a misunderstanding of the true function of amendment of pleadings under our scheme of civil procedure and on a poor view of the scope of the Court's discretion in the matter. The result is that there has been a failure on his part to exercise the jurisdiction vested in him under the law and not a mere error in its exercise. His order is, accordingly, set aside, and LA. 101 of 1974 is allowed. He will grant adequate time to the plaintiff to carry out the amendment in the plaint. He will also grant leave to the defendant to file an additional written statement."
31. The learned Counsel for the respondent then relied on another decision passed by the Hon'ble Division Bench of this High Court reported in 93 CWN page 631, Shyamal Mitra Mustafi v. J.G. Saggi.
32. In this judgment the Hon'ble Division Bench observed that while the first part of Rule 17 Order 6 vests the Court with discretion to allow amendment, the later part makes it obligatory on the Court to do so.
33. The learned Counsel for the respondent submitted that the First Appellate Court rightly remanded the matter to the Trial Court for consideration of the case after amendment and also for consideration of the additional evidence sought to be adduced.
34. Heard the learned Counsel for the parties, considered their respective submissions.
35. The point for consideration is as to whether the learned Appellate Court below should have sent the matter back to the learned Munsif for considering evidence after the amendment being allowed or whether such an amendment could be allowed. The other point for consideration is whether the application under Order 41 Rule 27 should have been allowed by the Appellate Court below and the Appellate Court below should have remanded the matter for consideration of the additional evidence.
36. It is the settled proposition of law that there is no limitation for the purpose of amending or for making amendment for the pleadings and it is the discretionary power of the Court to allow such an amendment and if the Court feels it necessary the Court can allow the amendment even which is contradictory to the original stand. I am of the view that insofar as the amendment part is concerned, the learned Appellate Court below rightly directed the learned Munsif to hear afresh after amendment.
37. Now let us look into provisions of Order 41 Rule 27 of the Code of Civil Procedure. The said provision is quoted hereinbelow :
Rule 27. Production of additional evidence in Appellate Court.--(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within, his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined.
(2) Whether additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
38. The said provision clearly enunciates that the parties seeking to produce additional evidence, whether oral or documentary is to establish that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed.
39. Now, let us see what is the application. The application contains seven paragraphs but in none of the paragraph it has been stated that due diligence was exercised but this evidence could not be made available. In this regard, I respectfully agree with observations made by the Hon'ble Division Bench of the High Court in the matter of Mahadeb Roy (supra) where Hon'ble Justice Sinha (as His Lordship then was) made observations that Order 41 Rule 27 of the CPC cannot be invoked unless the conditions made in the provision are satisfied. In the instant case it does not appear that the additional evidence sought to be produced was not within the knowledge of the plaintiff who was the appellant before the Appellate Court below. In my view the learned Appellate Court below was totally wrong in coming to the conclusion that since application under Order 6 Rule 17 of the CPC or Order 41 Rule 27 of the CPC has been filed, those are to be allowed without looking into the contents of it or without looking into the provisions of the Code.
40. In view of the discussions made above, I, therefore, don't find any merit in the appeal and the instant appeal is dismissed.
41. Liberty is however, given to the plaintiff to file a fresh suit if the plaintiff can make out a fresh cause of action.
42. The decree may be drawn up accordingly.
43. Let the records of the Courts below be sent down forthwith.
44. In the facts and circumstances, parties are to bear their own costs.