Calcutta High Court (Appellete Side)
Mr. Avijit Banerjee vs Chaya Ghosh & Ors on 26 November, 2021
01.
26.11.2021
S.D.
C.O. 4027 of 2019
Strategic Management Technology Consultants
(SMTC) represented by authorized Director
Mr. Avijit Banerjee
Vs.
Chaya Ghosh & Ors.
Mr. Milon Bhattacharya
Ms. Sulagna Bhattacharya
...For the Petitioner.
Mr.Tarak Nath Halder
...For the Opposite
Parties.
The petitioner, as the defendant of Title Suit No.
53 of 2016 now pending in the Court of Civil Judge,
Senior Division, 2nd Court, Barasat, has assailed the
order dated 14.11.2019 passed by the Trial Court in the
said suit whereby the prayer of the petitioner for
amendment of written statement was rejected for the
reason that the defendant had not exercised due
diligence in taking out amendment of his written
statement in the suit in respect of the facts sought to be
amended vide paragraph 4 of the written statement.
The learned Trial Court rejected the amendment based
on the finding that such facts were disclosed and
averred by the defendant in his plaint in suit for
2
declaration of tenancy and recovery of possession of
schedule B property to the plaint in Title Suit No. 63 of
2015. The opposite party/plaintiff filed the suit for
decree for recovery of khas possession of the suit
property as described in the schedule to the plaint and
for decree for arrear of rent of 16 months amounting to
Rs.1,16,000/- together with interest @ 12% against the
defendant till recovery of the amount, decree for
pendente lite, damages against the defendant at the
rate of Rs.500 per diem from 1.11.2015 till the disposal
of the suit. The suit was being contested by the present
petitioner by filing written statement denying all
materials particulars made in the plaint contending
inter alia that description of the suit property as
mentioned in paragraphs 1 and 2 of the plaint by the
opposite parties in their suit and the schedule of the
property thereof was not at all correct as the
petitioner/defendant was inducted as a tenant in
respect of the entire flat on the ground floor of the suit
premises no. HB-217, Salt Lake City, Sector III, Kolkata
- 700106 on monthly rent basis in 2005 for the purpose
of running an educational institution. The
petitioner/defendant sought for amendment of para 4
3
of the written statements under Order 6 Rule 17 read
with Section 151 CPC at the cumulative stage of the
argument in the suit. Amendment sought for is to the
following effect-
"Be it mentioned here that T.S. 63/2015 as
referred to above is a suit for declaration of tenancy in
respect of whole of the tenancy as described in
schedule 'A' to the plaint of T.S. 63/2015 and recovery
of khas possession in respect of 'B' schedule of the said
plaint wherefrom the present defendant has been
dispossession forcibly by the present plaintiffs. More
over so long this defendant is not restored with
peaceful possession of said dispossessed portion of the
tenancy, the liability to pay rent, or any amount
equivalent to rent/ or occupational charge/ damage etc
does not arise at all as principle of suspension of rent
and/or abatement of rent would apply."
The prayer so made was rejected by the Trial
Court on the consideration of the submission that
defendant/petitioner was a tenant in respect of the suit
property including other rooms in the suit building
and from the schedule B property mentioned in the
plaint filed by the defendant/petitioner as a plaintiff in
Title Suit no. 63 of 2015 wherein the petitioner sought
for recovery of possession in respect of the B schedule
property mentioned in the schedule of the plaint
narrating the facts as to how the petitioner was ousted
from the said portion mentioned in the schedule B to
the plaint.
4
Mr. Milon Bhattacharya, learned Senior Counsel,
appearing for the petitioner submits that the learned
Trial Court committed an error in finding that the fact
as stated by the petitioner was not mentioned in the
written statement as the fact has been well disclosed in
paragraph 4 of the written statement with regard to the
description of the suit property. It is submitted that
the learned Trial Court has failed to consider the
prejudice which may be caused to the petitioner if the
proposed amendment is not allowed and further that
the proposed amendment will also not change the
nature and character of the suit. Therefore, learned
Trial Court ought to have considered the application
for amendment of the written statement. It is pointed
out that particular amendment sought for in the
written statement does not require any evidence at all
because the basic facts are to be borne out from the
record and this was not a sudden change by virtue of
introducing any new facts in the matter. It is further
submitted that the learned Judge has failed to
appreciate the particulars of the amendment sought for
in the written statement because a serious dispute or
anomaly will arise at the time of execution of the
5
decree in both suits and to clarify the situation, an
amendment was needed. As such it is submitted that
there was no intentional delay or suppression of facts
and so the explanation was not required to be given.
Mr. Tarak Nath Halder, learned Counsel for the
opposite party on the contrary submits that the order
impugned is absolutely tenable in law and in facts of
the case and that amendment has been sought for at
the stage of argument only to delay the trial.
My attention is invited to the provision of Order
6 Rule 17 which reads thus:-
"17. Amendment of pleadings- The Court may
at any stage of the proceedings allow either
party to alter or amend his pleadings in such
manner and on such terms as may be just, and
all such amendments shall be made as may be
necessary for the purpose of determining the
real questions in controversy between the
parties.
Provided that no application for
amendment shall be allowed after the trial has
commenced, unless the Court comes to the
conclusion that in spite of due diligence, the
party could not have raised the matter before
the commencement of trial."
To support his contentions, reference to a
decision in the Case of Ajendraprasadji N. Pande &
Anr. Vs. Swami Keshavprakeshdasji N. & Ors.
reported in AIR 2007 SC 806 is relied by taking cue
6
from the observations that the proviso to Rule 17 of
Order 6 is required to be taken note of in the facts of
the case as the amendment sought for is at the belated
stage of argument when the deposition and evidence
of witnesses is already over as well the documentary
evidence is already tendered.
I have respectfully gone through the decision. It
appears that Hon'ble Supreme Court dismissed the
application rejecting the prayer for the amendment of
the pleading as three witnesses were already examined
and documentary evidence were tendered in the above
cited case. That apart, there is no due diligence on
part of the petitioner/defendant to take out such
application and thus, urged that the learned Trial
Court has rightly rejected the application for
amendment. Reliance is also placed in the case of
Vidyabai & Ors. Vs. Padmalatha & Anr. reported in
AIR 2009 SC 1433 on the observation made in
paragraphs 7, 8 and 14 which are reproduced
hereunder for better appreciation of the case:-
"7. By reason of the Civil Procedure Code
(Amendment) Act, 2002 (Act 22 of 2002), the
Parliament inter alia inserted a proviso to Order
VI Rule 17 of the Code, which reads as under:
7
"Provided that no application for amendment
shall be allowed after the trial has commenced,
unless the court comes to the conclusion that in
spite of due diligence, the party could not have
raised the matter before the commencement of
trial."
It is couched in a mandatory form. The court's
jurisdiction to allow such an application is taken
away unless the conditions precedent therefor are
satisfied, viz., it must come to a conclusion that in
spite of due diligence the parties could not have
raised the matter before the commencement of the
trial.
8. From the order passed by the learned Trial
Judge, it is evident that the respondents had not
been able to fulfill the said pre-condition.
The question, therefore, which arises for
consideration is as to whether the trial had
commenced or not. In our opinion, it did. The
date on which the issues are framed is the date of
first hearing. Provisions of the Code of Civil
Procedure envisage taking of various steps at
different stages of the proceeding. Filing of an
affidavit in lieu of examination in chief of the
witness, in our opinion, would amount to
`commencement of proceeding.
14. It is the primal duty of the court to decide as to
whether such an amendment is necessary to
decide the real dispute between the parties. Only
if such a condition is fulfilled, the amendment is
to be allowed.
However, proviso appended to Order VI, Rule 17
of the Code restricts the power of the court. It puts
an embargo on exercise of its jurisdiction. The
court's jurisdiction, in a case of this nature is
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."
Emphasising on the observation of the Hon'ble
Apex Court in para 14 above noted, it is pointed out
that it is for the Trial Court to first decide as to whether
amendment is at all necessary to adjudicate the moot
issue in the suit and further submitted that the present
suit by the opposite party has been brought under
Section 106 of Transfer of Property Act. So, the Trial
Court is required firstly to decide as to whether there is
jural relationship of landlord/tenant between the
parties and secondly whether the notice under Section
106 TP Act has been duly served on the
defendant/tenant.
Learned Counsel for the opposite party/plaintiff
relied on a decision in the Case of Payal Vision
Limited vs. Radhika Choudhury reported in (2012) 11
SCC 405 to contend that the opposite party as plaintiff
filed the suit for recovery of possession on eviction of
the defendant/petitioner herein and the suit filed is
under the provision of Section 106 of Transfer of the
Property Act. So, the Trial Court is only required to
address two issues as to whether there is jural
relationship of landlord and tenant between the parties
and secondly whether the notice issued under Section
106 of the Transfer of Property Act has been duly
served on the present petitioner/defendant. It has been
held in the cited case that in a suit for recovery of
possession from a tenant whose tenancy is not
protected under the provision of Rent Control Act, all
that is required to be established by the plaintiff
landlord is the existence of jural relationship of
landlord and tenant between the parties and the
termination of the tenancy either by lapse of time or by
notice served by the landlord under Section 106 of the
Transfer of Property Act. So long as these two aspects
are not in dispute, the Court can pass a decree in terms
of Order 12 Rule 6 of the CPC.
Thus, by referring to the above-cited decisions, it
is urged on behalf of the opposite party that the
revisional application is not maintainable and is liable
to be dismissed.
Mr. Milon Bhattacharya, learned senior Counsel,
for the petitioner submits that the Civil Court has wide
power to apply its discretion in allowing amendment
at any stage of the suit. It is also submitted that any
stage of the suit means that so long the judgment is not
delivered, the stage of suit remains open for discretion
of the Court to consider the amendment of the
pleading. There is no quarrel to such a submission.
To fortify his stand, reference to Baldev Singh &
Ors. Vs. Manohar Singh & Anr. reported in (2006) 6
SCC 498 is made relying on the observation in
paragraphs 9, 15 and 17 which are quoted herein for
profitable consideration.
"9. Keeping this principle in mind, let us now
consider the provisions relating to amendment of
pleadings. Order 6 Rule 17 of the Code of Civil
Procedure deals with amendment of pleadings which
provides that the Court may at any stage of the
proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may
be just, and all such amendments shall be made as
may be necessary for the purpose of determining the
real questions in controversy between the parties. A
bare perusal of this provision, it is pellucid that Order
6 Rule 17 of the Code of Civil Procedure consists of
two parts. The first part is that the Court may at any
stage of the proceedings allow either party to amend
his pleadings and the second part is that such
amendment shall be made for the purpose of
determining the real controversies raised between the
parties. Therefore, in view of the provisions made
under Order 6 Rule 17 of the CPC it cannot be
doubted that wide power and unfettered discretion
has been conferred on the Court to allow amendment
of the pleadings to a party in such manner and on
such terms as it appears to the Court just and proper.
While dealing with the prayer for amendment, it
would also be necessary to keep in mind that the
Court shall allow amendment of pleadings if it finds
that delay in disposal of Suit can be avoided and that
the suit can be disposed of expeditiously. By the
Code of Civil Procedure (Amendment) Act, 2002 a
proviso has been added to Order 6 Rule 17 which
restricts the Courts from permitting an amendment to
be allowed in the pleadings either of the parties, if at
the time of filing an application for amendment, the
trial has already commenced. However, Court may
allow amendment if it is satisfied that in spite of due
diligence, the party could not have raised the matter
before the commencement of trial. So far as proviso
to Order 6 Rule 17 of the Code of Civil Procedure is
concerned, we shall deal with it later.
15. Let us now take up the last ground on which the
application for amendment of the written statement
was rejected by the High Court as well as the Trial
Court. The rejection was made on the ground that
inconsistent plea cannot be allowed to be taken. We
are unable to appreciate the ground of rejection made
by the High Court as well as the Trial Court. After
going through the pleadings and also the statements
made in the application for amendment of the written
statement, we fail to understand how inconsistent plea
could be said to have been taken by the appellants in
their application for amendment of the written
statement, excepting the plea taken by the appellants
in the application for amendment of written statement
regarding the joint ownership of the suit property.
Accordingly, on facts, we are not satisfied that the
application for amendment of the written statement
could be rejected also on this ground. That apart, it is
now well settled that an amendment of a plaint and
amendment of a written statement are not necessarily
governed by exactly the same principle. It is true that
some general principles are certainly common to both,
but the rules that the plaintiff cannot be allowed to
amend his pleadings so as to alter materially or
substitute his cause of action or the nature of his claim
has necessarily no counterpart in the law relating to
amendment of the written statement. Adding a new
ground of defence or substituting or altering a defence
does not raise the same problem as adding, altering or
substituting a new cause of action. Accordingly, in the
case of amendment of written statement, the courts
are inclined to be more liberal in allowing amendment
of the written statement than of plaint and question of
prejudice is less likely to operate with same rigour in
the former than in the latter case.
17. Before we part with this order, we may also notice
that proviso to Order 6 Rule 17 of the CPC provides
that amendment of pleadings shall not be allowed
when the trial of the Suit has already commenced. For
this reason, we have examined the records and find
that, in fact, the trial has not yet commenced. It
appears from the records that the parties have yet to
file their documentary evidence in the Suit. From the
record, it also appears that the Suit was not on the
verge of conclusion as found by the High Court and
the Trial Court. That apart, commencement of trial as
used in proviso to Order 6 Rule 17 in the Code of Civil
Procedure must be understood in the limited sense as
meaning the final hearing of the suit, examination of
witnesses, filing of documents and addressing of
arguments. As noted herein after, parties are yet to file
their documents, we do not find any reason to reject
the application for amendment of the written
statement in view of proviso to Order 6 Rule 17 of the
CPC which confers wide power and unfettered
discretion to the Court to allow an amendment of the
written statement at any stage of the proceedings."
Thus, it is well settled that an amendment of
plaint and amendment of a written statement are not
necessarily governed by exactly the same principle, but
the general principle is certainly common to both. But
the rules that the plaintiff cannot be allowed to amend
his pleadings so as to alter materially or substitute his
cause of action or the nature of his claim has
necessarily no counterpart in the law relating to
amendment of the written statement. It is pointed out
that Hon'ble Apex Court in the above cited decision
allowed the amendment of the written statement in
view of proviso to Order 6 Rue 17 CPC which confers
wide power and unfettered discretion to the Court to
allow an amendment of a written statement at any
stage of the proceedings. It has also been observed
that commencement of trial as used in provision to
Order 6 Rule 17 in the Code of Civil Procedure must be
understood in the limited sense as meaning the final
hearing of the suit, examination of the witnesses, filing
of documents and addressing of arguments, as such, it
is submitted even at the stage of argument, the
petitioner has right to seek amendment of his
pleadings if required in the interest of justice or for the
adjudication of the controversy arising out of the
pleadings between the parties and the amendment be
liberally allowed and the question of prejudice is also
required to be judged by the Trial Court.
With regard to the stage of the suit and the
commencement of the trial, learned counsel for the
petitioner relied on a Division Bench judgment of this
Hon'ble Court in the case of Sree Sree Iswar Radha
Behari Jew & Sree Sree Iswar Salgram Jew
represented by Basudeb Das vs. Malati P. Soni
reported in 2019 (3) CLJ (Cal) 77 wherein reference to a
question was raised for decision whether in view of
Vidyabai & Ors. (supra), commencement of trial as
envisaged in the proviso to Order VI Rule 17 of the
CPC, would mean the date of first hearing, that is the
date of framing of issues, or the final hearing of the
suit, examination of witnesses, filing of documents and
addressing of arguments. This question was answered
to the effect that the expression "Commencement of
Trial" in the proviso to Order 6 Rule 17 of the CPC
would imply the date when the Court first applies its
mind after the affidavit of evidence is filed and when
the first witness proves his affidavit of evidence or
such witness seeks to prove a document for it to be
tendered in evidence or the cross examination of such
witness begins, whichever is earlier. It has been held
that the proviso sets out a jurisdictional precondition
for the exercise of an authority to allow an
amendment. Ordinarily, Courts have been liberal to
allow pleadings to be amended at any stage so that the
real disputes between the parties may be determined
and there is no multiplicity of judicial proceedings.
However, for several decades the provision permitting
amendment has been misused to stall a worthy claim
or to harass the other side. The proviso now leaves
very little room for the Court's discretion. The only
element of discretion is the subjective satisfaction of
the Court that in seeking amendment was not by
design and that such delay was occasioned despite due
diligence on the part of the applicant. Thus, learned
counsel for the petitioner relied on the various
paragraphs being 12, 14, 16, 17, 18 and 20 to contend
that the amendment can be allowed at any stage of the
suit.
On behalf of the petitioner reliance is also placed
on a decision of Usha Devi vs. Rijwan Ahamd & Ors.
reported in (SC; Suppl.) 2008 (2) CHN 7 to the
observation in paragraphs 9 and 10 which reads thus:-
"9. Mr.Bharukha, on the other hand, invited our
attention to another decision of this Court in Baldev
Singh & Ors. Vs. Manohar Singh & Anr. [2006 (6) SCC
498]. In paragraph 17 of the decision, it was held and
observed as follows : Before we part with this order, we
may also notice that proviso to Order 6 Rule 17 CPC
provides that amendment of pleadings shall not be
allowed when the trial of the suit has already
commenced. For this reason, we have examined the
records and find that, in fact, the trial has not yet
commenced. It appears from the records that the parties
have yet to file their documentary evidence in the suit.
From the record, it also appears that the suit was not on
the verge of conclusion as found by the High Court and
the trial court. That apart, commencement of trial as
used in proviso to Order 6 Rule 17 in the Code of Civil
Procedure must be understood in the limited sense as
meaning the final hearing of the suit, examination of
witnesses, filing of documents and addressing of
arguments. As noted hereinbefore, parties are yet to file
their documents, we do not find any reason to reject the
application for amendment of the written statement in
view of proviso to Order 6 Rule 17 CPC which confers
wide power and unfettered discretion to the court to
allow an amendment of the written statement at any
stage of the proceedings. Mr.Bharukha also invited our
attention to a three-Judge Bench decision of this Court in
Sajjan Kumar vs. Ram Kishan [2005 (13) SCC 89]. In this
decision too the proposed amendment related to
correction of the description of the suit premises in the
plaint. The amendment was sought on the plea that the
description of the property given in the rent note itself
was incorrect and the same description was repeated in
the plaint and there would be complications at the stage
of execution to avoid which the description of the suit
premises as given in the plaint needed to be corrected.
Another similarity with the case in hand was that the
prayer for amendment was opposed by the defendant-
respondent on the principal ground that although the
defendant had taken the plea in the written statement
itself that the suit premises were not correctly described,
yet the plaintiff- appellant proceeded with the trial of the
suit and did not take care to seek the amendment at an
early stage. The trial court rejected the prayer for
amendment and the High Court dismissed the civil
revision against the order of the trial court. Allowing the
prayer for amendment this Court in paragraph 5 of the
decision observed as follows :
"Having heard the learned counsel for
the parties, we are satisfied that the appeal
deserves to be allowed as the trial court,
while rejecting the prayer for amendment
has failed to exercise the jurisdiction vested
in it by law and by the failure to so exercise
it, has occasioned a possible failure of justice.
Such an error committed by the trial court
was liable to be corrected by the High Court
in exercise of its supervisory jurisdiction,
even if Section 115 CPC would not have been
strictly applicable. It is true that the plaintiff-
appellant ought to have been diligent in
promptly seeking the amendment in the
plaint at an early stage of the suit, more so
when the error on the part of the plaintiff
was pointed out by the defendant in the
written statement itself. Still, we are of the
opinion that the proposed amendment was
necessary for the purpose of bringing to the
fore the real question in controversy between
the parties and the refusal to permit the
amendment would create needless
complications at the stage of the execution in
the event of the plaintiff-appellant
succeeding in the suit."
10. In view of the decision in Sajjan Kumar,
we are of the view that this appeal too deserves to be
allowed. We may clarify here that in this order we do
not venture to make any pronouncement on the larger
issue as to the stage that would mark the
commencement of trial of a suit but we simply find
that the appeal in hand is closer on facts to the
decision in Sajjan Kumar and following that decision
the prayer for amendment in the present appeal
should also be allowed."
It emerges from the above observations that it is
true that the plaintiff/appellant ought to have been
diligent in seeking the amendment in the pleading at
an early stage of the suit, more so when the error on
the part of the plaintiff was pointed out by the
defendant in the written statement itself. Still the
Hon'ble Supreme Court was of the opinion that the
proposed amendment was necessary for the purpose
of bringing to the plaint that real question in
controversy between the parties and the refusal to
permit the amendment would create needless
complications at the stage of execution in the event of
the plaintiff/appellant succeeded in the suit. In these
set of facts, the amendment was allowed by the
Hon'ble Apex Court.
In the case in hand, question is whether the
averments sought to be amended in paragraph 4 of the
written statement is at all necessary for adjudicating
the real controversy arising out of the pleadings. I
understand from the decision in Baldev Singh & Ors.
(supra) that by the Civil Procedure Code
(Amendment) Act, 2002 proviso has been added to
Order 6 Rule 17 which restricts the Court from
permitting an amendment to be allowed in the
pleadings of either of the parties if at the time of filing
of an application for amendment, the trial has already
commenced. However, the Court may allow
amendment if it is satisfied that despite due diligence
the party could not have raised the matter before the
commencement of the trial. In the cited decision, the
Hon'ble Court took note of the well-settled proposition
that an amendment of the written statement are not
necessarily governed by exactly the same principle as
in case of amendment of plaint. In the cited case, the
amendment of the written statement was considered as
the Court has wide power and unfettered discretion to
allow the amendment in the written statement in any
stage of the proceedings, but it was allowed because
the trial had not even commenced. Therefore, the ratio
of decision in the cited case is not within the facts and
circumstances of the instant case and is quite
distinguishable. No doubt, the Court can apply its
discretion in allowing the amendment at any stage of
the suit, but the amended provision as to the proviso to
Order 6 Rule 17 are necessarily to be adhered.
Having heard rival contentions and in the above
context, this Court finds that the petitioner had every
knowledge from the beginning about the fact which is
sought to be amended in a suit of eviction filed by the
plaintiffs/opposite parties herein. That apart, I am of
the considered view that amendment sought for is not
necessary for adjudication of the real controversy
arising out of the pleadings between the parties as on
the principle of law, the Court is required to entertain
two issues in a suit under Section 106 of the Transfer of
Property Act that to decide whether there is a jural
relationship between landlord and tenant and
secondly whether the tenancy has been determined by
efflux of time or notice duly served upon the
defendant/tenant. However, it is made clear that since
the petitioner has already filed a suit for declaration of
tenancy in respect of the whole of the flat on the
ground floor of the premises and further relief, both
the suit should be heard analogously or
simultaneously before by the Trial Court. This Court
finds that impugned order rejecting the prayer for
amendment at the stage of argument is substantially
correct because bare reading of the provision of Order
6 Rule 17 of Civil Procedure Code reflects that rule is
to be applied mandatorily and the Court has no
jurisdiction at all to allow amendment in absence of
jurisdictional facts in view of proviso clause to Order 6
Rule 17, although, the Civil Court has absolute
discretion to allow amendment at any stage of the suit,
but an applicant has to explain that despite due
diligence, such amendment could not be made at an
early stage.
Accordingly, the revisional application being
C.O. 4027 of 2019 is dismissed, however, without any
order as to cost.
All parties shall act in terms of copy of this order
downloaded from Official Website of this Court.
(Shivakant Prasad, J.)
