Calcutta High Court (Appellete Side)
M/S Toplight Commercials Limited vs Abdul Kalam And Others on 7 August, 2019
Author: Sabyasachi Bhattacharyya
Bench: Sabyasachi Bhattacharyya
In the High Court at Calcutta
Civil Revisional Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
C.O. No.1410 of 2019
M/s Toplight Commercials Limited
Vs.
Abdul Kalam and others
For the petitioner : Mr. Saptangshu Basu,
Mr. Kumar Gupta,
Mr. Supratim Laha,
Mr. Binay Kumar Jain
For the opposite parties : Mr. Probal Kumar Mukherjee,
Mr. Sankar Chaudhuri
Hearing concluded on : 31.07.2019
Judgment on : 07.08.2019
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Sabyasachi Bhattacharyya, J.:‐
1.The present application under Article 227 of the Constitution of India arises from an order allowing an amendment of plaint.
2. The opposite parties filed the suit for the following reliefs:
"a) A Decree declaring the defendant as trespasser in the suit property as he does not possess any right, title, interest and possession in the property mentioned in the Schedule;
b) A decree for permanent injunction restraining the defendant and his men and agents from disturbing and/or not to make any construction by changing the nature and character of the suit property;
c) Cost of the suit;
d) Any other relief/reliefs as the plaintiff is entitled to law and equity."
3. In the said suit, initially the opposite parties had filed an application for amendment of plaint, which was partially allowed by an order dated April 20, 2011.
4. Subsequently, after the commencement of trial, the opposite parties took out another application for amendment of plaint, which was allowed by the impugned order dated March 8, 2019.3
5. The primary grievance of the defendant/petitioner in the present revision is that the said subsequent amendment was allowed in contravention of the proviso to Order VI Rule 17 of the Code of Civil Procedure. No explanation was given for taking out the amendment after the commencement of trial, although it is apparent from the proposed amendments that the plaintiffs/opposite parties must have had knowledge of the said allegations previously.
6. It is further argued that the second amendment was barred by the principle of res judicata, since the same sought to bring on record certain allegations, introduction of which was refused by the trial court while deciding the previous amendment application.
7. It is pointed out from an order dated May 30, 2010, by which the trial court rejected an application for injunction filed by the opposite parties, that the nine deeds sought to be challenged, inter alia, by the current amendment were all disclosed in the trial court previously, as recorded in the said order of refusal of injunction. It is further argued, by placing reliance on certain portions of the written statement filed by the defendant/petitioner in the court below on September 1, 2004, in particular paragraph no. 7(d) of the said written statement, that the relevant facts about the nine deeds‐in‐question had been disclosed by the petitioner in its pleadings. As such, there was no reason for the opposite parties 4 to wait for fourteen years to file the amendment application, challenging such deeds and the relief sought to be introduced, challenging such deeds, was palpably time‐barred.
8. Learned senior counsel for the petitioner next argues that the reliefs of recovery of possession and mandatory injunction, and the associated allegations, also sought to be brought on record by the second amendment, were time‐barred as well. It is submitted that the cause of action, if any, for such relief arose, even as per the plaint case, on July 29, 2003 and became time‐barred after the lapse of twelve years from the said date. By placing reliance on paragraph nos. 7 and 11 of the plaint, as those stood originally, learned senior counsel for the petitioner argues that the plaintiffs/opposite parties categorically alleged that the defendant/petitioner, with the help of its men and agents, had gathered building materials to encroach upon the suit property and had attempted to make constructions forcefully on the property. Although in the very next paragraph, the plaintiffs had averred that the defendant has no possession, the said averment was belied by the original relief (b) sought in the plaint, which was not intended to protect the alleged possession of the plaintiffs but to restrain the defendant/petitioner from making construction and changing the nature and character of the suit property, thereby implying that the defendant/petitioner was in possession even at the juncture of filing of the suit. 5
9. Learned senior counsel cites, in support of his arguments, a judgment reported at (2008) 14 SCC 364 [Rajkumar Gurawara (Dead) Through LRS. Vs. S.K. Sarwagi and Company Private Limited and another]. It was held by the Supreme Court in the said judgment that pre‐trial amendments are to be allowed liberally than those which are sought to be made after the commencement of trial. In the latter case, particularly after completion of the evidence, the question of prejudice to the opposite party may arise and in such event, it is incumbent on the part of the court to test satisfaction of the conditions prescribed in the proviso to Order VI Rule 17 of the Code.
10. In the present case, the trial Judge held that the plaintiffs have filed the amendment application definitely after commencement of trial at a belated stage and also that it further appears that at the time of institution of the suit, the plaintiff was not in possession over the suit property. The trial court further found in the impugned order that, after knowing the fact of dispossession, the plaintiffs have deliberately abstained themselves from rectifying the plaint for a long time and the reason for such delay is best known to the plaintiffs. It was also held that the plaintiffs had not shown any due diligence.
11. In spite of such findings, the trial court violated the specific stipulation of the proviso to Order VI Rule 17 of the Code to allow the amendment. 6
12. Learned senior counsel next cites a judgment reported at (2009) 2 SCC 409 [Vidyabai and others Vs. Padmalatha and another], for the proposition that the proviso appended to Order VI Rule 17 of the Code restricts the power of the court and puts an embargo on the exercise of its jurisdiction. The court's jurisdiction, in a case of this nature, was held to be limited. Thus, unless the jurisdictional fact as envisaged therein is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint.
13. In such view of the matter, the petitioner submits that the amendment ought to have been rejected by the trial court.
14. Learned senior counsel appearing for the plaintiffs/opposite parties submits that since the trial court accepted the reasons for delay by exercise of its judicial discretion, there was little or no scope to interfere with such exercise under Article 227 of the Constitution of India. It is submitted that, by allowing the amendment, the trial court must be deemed to have been satisfied with the reasons for delay furnished by the petitioner, thereby satisfying the criteria of the proviso to Order VI Rule 17 of the Code.
15. Learned senior counsel next argues that the defendant had produced only photocopies of the nine deeds‐in‐question previously. Certified copies of the said documents were produced only along with the affidavit of examination‐in‐chief 7 of the defendant's witness. Only thereafter could the plaintiffs/opposite parties take out the amendment application.
16. As such, the challenge regarding the said deeds was not time‐barred and could not have been taken earlier. The amendment was filed at the earliest after the production of the certified copies of those documents and as such, could not be held to be barred, either by limitation or by the proviso to Order VI Rule 17 of the Code.
17. Learned senior counsel for the opposite parties cites a judgment of a co‐ordinate bench of this court, reported at 2013(1) CLJ (Cal) 10 [Ajay Kumar Paul & Anr. Vs. Sushil Kumar Sah & Ors.]. The learned Single Judge had diluted the restrictive effect of the proviso to Order VI Rule 17 in the said judgment. It was held, inter alia, that the proviso does not create an insurmountable bar in all circumstances;
it only makes a more liberal approach, adopted under the 2002 Amendment to the Code as to the amendment of pleadings, stricter in case of a belated application. It was held that the tests still continue to be as to whether the amendment would be in the interest of justice and as to whether the real controversies between the parties can be determined upon the amendment being taken on record. The other considerations judicially recognized are, whether the nature and character of the claim or defence was sought to be altered, whether a 8 case originally run or an admission made was endeavoured to be detracted from and whether a valuable right accrued to the other party is attempted to be put at naught or diluted.
18. It was further held that it was not as if the proviso to the Rule is the be‐all or end‐ all of the provision at which altar every belated application, regardless of merit, must be sacrificed. Judicial exercise requires a fine balancing act, inter alia, by putting the applicant on terms as the body of the Rule suggests and, as much as the proviso advocates a degree of discipline and strictness, the cause of justice cannot be held to ransom to the clerical application of the proviso.
19. It is further argued that the prayers of recovery of possession and mandatory injunction could not be made earlier since the construction was completed and a Mall was made operational on the suit property by the petitioner subsequent to the filing of the suit.
20. It is thus submitted that the trial court was justified in allowing the amendments.
21. The questions which fall for consideration in the present revisional application are:
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(i) Whether the amendments sought to be introduced by the second amendment application were barred by the proviso to Order VI Rule 17 of the Code of Civil Procedure;
(ii) Whether the reliefs sought by way of amendment were barred by limitation and/or the principle of res judicata on the face of it, thus vitiating the order allowing the same.
22. There are primarily two components to the amendments sought, the first being a challenge to nine deeds and the second an allegation that the defendant/petitioner had encroached and constructed upon the suit property and consequential reliefs of recovery of possession and mandatory injunction.
23. As far as the nine deeds are concerned, in the written statement filed by the defendant/petitioner on September 1, 2004, it had been mentioned in paragraph no. 7(d) that the said deeds had been executed on November 10, 1995 and had been registered in the office of the Registrar of Assurance at Delhi and recorded in Book No. I in the said office. Moreover, the trial court recorded in an order dated May 30, 2010, refusing a prayer for injunction of the plaintiffs, that the photocopies of the nine deeds‐in‐question had been produced by the defendant/petitioner.
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24. In fact, the basis of the plaintiffs' case is that the cause of action for the current amendment arose only after the certified copies of the said documents were produced with the examination‐in‐chief of the defendant's witness. However, the said deeds were mentioned fourteen years back in the written statement as well as recorded to be produced eight years back in the order dated May 30, 2010. The plaintiffs/opposite parties failed not only to challenge the said deeds in the original plaint, but also to put up a specific challenge to those deeds despite having previously filed an amendment application in March, 2011.
25. However, it is seen from the schedule of the previous amendments of 2011 that, in the proposed amendment stated in clauses (iv) and (v) of the said proposed amendment, the plaintiffs had mentioned that, on careful perusal of the papers filed by the defendant during the time of hearing of the injunction application as well as the averments made in the written statement, the plaintiffs had come to know that one Khan allegedly claimed to be the owner of the suit property and further the defendant had referred to various documents and papers relating to the suit property. It was also stated that since the predecessor‐in‐interest of the plaintiffs had better title by virtue of deed of conveyance, any other documents and/or papers or writings cannot take away the ownership of the predecessor‐in‐ interest of the plaintiffs, through whom the plaintiffs had derived right, title and interest in the suit property. A relief was also to be incorporated in the plaint, for 11 declaration that all papers, writings or documents disclosed and to be produced by the defendant relating to the suit property are invalid, illegal, not binding and no legal right had "passed upon the defendant" and that all those papers, documents, writings were required to be delivered up so as to set at rest all purported disputes between the parties hereto.
26. Vide order dated April 20, 2011, the said clauses, being (iv) and (v), were refused by the trial court. Since the plaintiffs had sought to introduce an amendment previously challenging the documents as mentioned at the hearing of the injunction application and in the written statement, which included the nine deeds‐in‐question, it has to be construed that the said nine deeds were also incorporated in the said challenge, but such amendment was refused by the trial court. As such, similar amendments challenging the same deeds, now specifically, by introducing pleadings in that regard as well as a relief to that effect, is barred by the principle of res judicata.
27. Moreover, such an amendment is also time‐barred since, despite having knowledge of the said documents as long back as in 2004 and having scope to peruse the photocopies of the documents also in 2010, when the injunction application of the plaintiffs was refused, the plaintiffs/opposite parties chose not 12 to challenge the said deeds for so long, letting the statutory limitation period of three years elapse long back.
28. The second component of the amendment is the prayer for recovery of possession and mandatory injunction and associated pleadings.
29. In paragraph nos. 7, 10 and 11 as well as relief (b) of the plaint itself, the fact of the defendant having already entered into possession of the suit property was betrayed. In fact, the photocopy of the paint which was served on the defendant/petitioner, a copy of which has, in turn, been annexed to the present revisional application, shows that the expression "dispossession" was deleted from relief (b). If the said expression was incorporated in prayer (b), the prayer for injunction would have been a prayer for permanent injunction restraining the defendant from dispossessing the opposite parties as well, which was deleted from the prayer visibly. The said omission speaks volumes and the term dispossession becomes conspicuous by its absence, indicating that such prayer was not necessary any more when the suit was filed. That apart, the injunction sought was to restrain the defendant and its men and agents from disturbing and/or from making any construction by changing the nature and character of the suit property. Construction or change of character cannot be made unless a person or juristic entity is in possession of the property‐in‐question. As such, 13 implicit in the prayer for injunction was the admission that the defendant/petitioner was already in possession of the suit property in the year 2003, when the plaint was filed.
30. As far as the judgments cited on behalf of the petitioner are concerned, it is well‐ settled that the power of the court to allow an amendment is now fettered by the proviso to Order VI Rule 17 of the Code of Civil Procedure. Pre‐trial amendments are to be allowed more liberally than those which are sought to be made after the commencement of trial. In the event the proviso is not satisfied, the court loses its jurisdiction to allow the amendment.
31. Not only was the explanation for delay provided in the amendment application a lame excuse in the facts of the case, the trial court, in the impugned order, repeatedly held that it was clear that the defendant/petitioner was already in possession of the suit property at the time of filing of the suit and that the plaintiffs/opposite parties had not shown any due diligence by filing the second amendment application in proper time. It was also observed that at the time of institution of the suit, the plaintiffs were not in possession of the suit premises and that the plaintiffs, even after knowing the fact of the dispossession, had deliberately abstained from rectifying the plaint for a long time and the reason for such delay was best known to the plaintiffs.
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32. Thus, it is clear from the said findings, that the trial court itself was not at all satisfied that the conditions stipulated in the proviso to Order VI Rule 17 were met by the plaintiffs. As such, the trial court did not have jurisdiction in view of Vidyabai (supra) to allow the amendment at all.
33. The co‐ordinate bench judgment cited by the plaintiffs/opposite parties also stipulates that after the 2002 Amendment to the Code, the liberal approach as to amendment of pleadings is stricter in case of belated applications.
34. Read in the light of the judgment of Vidyabai (supra), such observations have to be read as to denude the court of the jurisdiction to allow amendments after the commencement of trial, in the event the party seeking amendment fails to satisfy the criteria of the proviso to Order VI Rule 17 of the Code.
35. In the present case, the trial court itself repeatedly held that the proviso was not satisfied and as such, acted patently without jurisdiction in allowing the amendments.
36. That apart, in view of the discussions above, both the reliefs of recovery of possession/mandatory injunction and declaration that the nine sale deeds were forged, manufactured, etc., were palpably time‐barred and as such, the trial court ought to have refused such amendment also on the said ground, since such factor is evident on the face of the amendment.
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37. The amendment as regards the challenge to the deeds, in addition, was also barred by the principle of res judicata in view of the similar amendment having been refused by the previous order of the trial court dated April 20, 2011.
38. Thus, both the questions which fell for consideration in the instant revisional application are held in the affirmative.
39. As such, the impugned order allowing the amendment cannot be sustained.
40. Accordingly, C.O. No.1410 of 2019 is allowed on contest, thereby setting aside the impugned order and rejecting the application filed by the plaintiffs/opposite parties on March 28, 2018, for amendment of the plaint in Title Suit No. 302322 of 2003. In the event any amended plaint has been filed by the opposite parties in terms of the impugned order dated March 8, 2019, the same shall be expunged from the records and the trial court shall not take cognizance of the same at any further stage of the suit.
41. There will be no order as to costs.
42. Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
( Sabyasachi Bhattacharyya, J. )