Calcutta High Court (Appellete Side)
Kartick Chandra Das vs Rabi Dutta & Ors on 9 March, 2010
Author: Dipankar Datta
Bench: Dipankar Datta
1
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
Present : The Hon'ble Justice Dipankar Datta
C.O. 3682 of 2010
Kartick Chandra Das
Versus
Rabi Dutta & ors.
For the petitioner : Mr. Jiban Ratan Chatterjee
Mr. Tarak Nath Haldar
For the opposite party : Mr. Sibnath Ganguly
Heard on : March 2, 2011
Judgment on : March 9, 2011
1.The petitioner is the plaintiff in T.S. No.188 of 1999. He questions the propriety of order dated September 28, 2010 passed by the trial Court rejecting an application for amendment of the plaint under Order VI Rule 17 of the Civil Procedure Code. The trial Court held that the facts the plaintiff seeks to incorporate by way of amendment are not "highly essential for proper adjudication of this suit".
2. The suit is one for eviction of the opposite parties. The plaintiff/petitioner claimed that he is the owner/thika tenant in respect of the suit premises and that the defendants are tenants under him.
3. The defendants have been contesting the suit by filing a written statement. It is their specific case in the written statement that the plaintiff is not the owner of the suit property. According to them, Smt. Panchu Bala Das was the owner-thika tenant and landlord of the suit premises. She died issue-less. After her death, there is none to 2 claim the suit premises either by way of inheritance or otherwise and the plaintiff has no right, title and interest in respect of the suit premises.
4. The suit had reached the stage of argument. At this stage, the plaintiff filed the application under Order VI Rule 17 of the Code. The schedule of amendment appended to such application reveals that the plaintiff intended to incorporate in the plaint additional facts to the effect that his father (since deceased) was the owner/thika tenant in respect of the suit premises; that after his death, the suit premises devolved upon Smt. Panchu Bala Das, his widow and son (plaintiff) and both became joint thika tenants in respect thereof; that during her life-time, the plaintiff's mother executed a will by which the suit premises was bequeathed to the plaintiff; that the will was not in the custody of the plaintiff and he recently had access to the same through one of the witnesses of such will; that according to Hindu Succession Act, the plaintiff had inherited the share of his mother, there being no other heir left behind by her; and that he became the sole thika tenant and has been depositing ground rent with the thika controller as thika tenant of the suit premises.
5. Mr. Chatterjee, learned senior advocate appearing for the plaintiff/petitioner contended that the trial Court acted illegally in the exercise of its jurisdiction in dismissing the application for amendment. Various decisions were relied on by him to contend that the trial Court was required to adopt a liberal approach while considering the said application, viz. AIR 1969 SC 1267 : Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, (2007) 1 SCC 765 : State Bank of Hyderabad v. Town Municipal Council, 2007 (2) CLJ (Cal) 781 : Sk. Abdul Kalam & ors. v. Umapada Maity & ors., (2003) 2 WBLR (Cal) 243 : Ramendranath Banerjee v. Pradip Kumar Sen, 2002 (1) RCR 405 : Swami Vivekanand Shishu Mandir v. Begam, and AIR 2000 Allahabad 90 : M/s. Om Rice Mill, Jaspur & ors. v. Banaras State Bank Ltd., Kashipur. By the amendment as sought for, the plaintiff/petitioner did not seek to alter the nature and character of the suit; on the contrary, he only sought to describe how the suit premises was inherited by him. The trial Court was not required to 3 consider the merit of the amendment sought for. Unless the plaintiff/petitioner established his ownership in respect of the suit premises, eviction cannot be ordered and, therefore, the amendment being necessary for determining the controversial issues, the trial Court ought to have allowed the application.
6. Mr. Ganguly, learned advocate appearing for the defendant/opposite party, on the contrary, contended that the trial Court was perfectly justified in rejecting the application for amendment. According to him, the plaintiff had not offered any explanation for not seeking amendment during the last one decade or so the suit has remained pending. The argument of the defendants had been closed and it was at this stage that the amendment was sought for which, if allowed, would require a de-novo trial and that would not be in the interest of justice. Even otherwise, the amendment if allowed would amount to infringement of the rights that have accrued in favour of the defendants. He relied on the decision reported in (2008) 3 WBLR (Cal) 877 : Maya Rani Laha v. Birendra Nath Auddy & ors. to contend that the Court while dealing with an application for amendment ought to consider if any serious prejudice, an injury or irreparable loss is likely to be caused to the other party or not and should not be swayed by the fact that the aggrieved party would have the scope of filing additional written statement. He contended that the amendment application had been filed malafide and, accordingly, prayed before this Court to reject this application and thereby to uphold the order of the trial Court.
7. I have considered the submissions advanced by the parties. The proviso to Order VI Rule 17 of the Code that has been incorporated by way of amendment would not apply in the present case since the suit was instituted in 1999. Therefore, the consideration ought to be confined only to the question as to whether the amendment sought for by the petitioner is necessary for deciding the real question in controversy between the parties or not. It is settled law that provisions for the amendment of pleadings, subject to such terms as to costs and giving all parties concerned necessary opportunities to 4 meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them.
8. The Supreme Court in Jai Jai Manohar Lal (supra) ruled that:
"5. ***Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertance or even infraction of the Rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.***"
9. In its decision reported in AIR 1978 SC 484 : M/s Ganesh Trading Co. v Moji Ram, the Supreme Court observed :
"5. It is true that, if a plaintiff seeks to alter the cause of action itself and to introduce indirectly, through an amendment of his pleadings, an entirely new or inconsistent cause of action, amounting virtually to the substitution of a new plaint or a new cause of action in place of what was originally there, the Court will refuse to permit it if it amounts to depriving the party against which a suit is pending of any right which may have accrued in its favour due to lapse of time. But, mere failure to set out even an essential fact does not, by itself, constitute a new cause of action. A cause of action is constituted by the whole bundle of essential facts which the plaintiff must prove before he can succeed in his suit. It must be antecedent to the institution of the suit. If any essential fact is lacking from averments in the plaint the cause of action will be defective. In that case, an attempt to supply the omission has been and could sometimes be viewed as equivalent to an introduction of a new cause of action which, cured of its shortcomings, has really become a good cause of action. This, however, is not the only possible interpretation to be put on every defective state of pleadings. Defective pleadings are generally curable if the cause of action sought to be brought out was not ab initio completely absent. Even very defective pleadings may be permitted to be cured, so as to constitute a cause of action where there was none, provided necessary conditions such as payment of either any additional Court fees, which may be payable, or, of costs of the other side are complied with. It is only if lapse of time has barred the remedy on a newly constituted cause of action that the Courts should, ordinarily, refuse prayers for amendment of pleadings."
10. I do not find any justification to concur with Mr. Ganguly that only because the argument of the defendant has been closed, that should be a ground for refusing amendment. Order VI Rule 17 makes it clear that the Court may at any stage of the proceedings allow either party to amend his pleadings in such manner and on such 5 terms as may be just. Amendment can even be allowed at the appellate stage. On consideration of the authorities on the point, delay in seeking amendment does not appeal to me to constitute sufficient ground to refuse amendment. Considering the facts and circumstances of the present case, it appears that the amendment as sought for is not foreign to the scope of the suit. Even after amendment, the suit would remain a suit for eviction of the defendants. It is also settled law that amendment may be allowed to meet a plea raised by the opposite party. One may usefully refer to the decision in AIR 1991 SC 511 : Pancham Dass Chela Mahant Sant Ram v. S.G.P.C., Amritsar, where this principle was applied. The plea of malafide set up by the defendants/opposite parties is not established by reliable evidence. If the amendment were to be allowed, no accrued right of the defendants/opposite parties would stand infringed. Of course the defendants/opposite parties would be inconvenienced but that could have been taken care of by imposing compensatory costs.
11. The learned Judge, therefore, was not justified in rejecting the prayer for amendment.
The impugned order is set aside.
12. The application stands allowed.
13. The plaintiff/petitioner however shall bear costs assessed at Rs.3000/- to be paid to the defendants as a condition precedent for having the plaint amended. The defendants/opposite parties shall be allowed to file additional written statement, confined to the amendments in the plaint, within 4 weeks from date of receipt of the amended plaint.
14. In the event costs as directed are not paid by the plaintiff/petitioner to the defendants/opposite parties within three weeks from date, the order impugned shall revive and the learned trial Court shall proceed to decide the suit on the basis of the original plaint.
15. Urgent photostat certified copy of the judgment and order, if applied for, be given to the parties at an early date.
6(DIPANKAR DATTA, J.)