Calcutta High Court (Appellete Side)

Md. Abdus Salam Rahimi vs A.M. Abasan Private Limited & Ors on 14 December, 2022

14.12.2022
   148
Ct. no. 652
    sb
                                    C.O. 1992 of 2019
                                         With
                                    CAN 1 of 2022


                           Md. Abdus Salam Rahimi
                                       Vs.
                           A.M. Abasan Private Limited & ors.


                    Mr. Javed K. Sanwarwala
                    Mr. Shariq A. Sanwarwala        ...for the petitioner

                    Mr. Rajdeep Bhattacharya
                    Mr. Shaveq Siddique      ...for the opposite party

                    Mr. Sk. Md. Galib
                    Ms. Tanwishree Mukherjee ...for the Board of Auqaf



                     Affidavit of service filed by the petitioner, is taken

              on record.

                     Being aggrieved and dissatisfied with the order No.

              41 dated 28.3.2019 passed by Waqf tribunal in suit no.

              10 of 2013, the present application under Article 227 of

              the Constitution of India has been preferred.

                     By the impugned order, the tribunal was pleased

              to reject the petitioner's prayer for amendment of plaint

              under Order VI rule 17 read with Section 151 of the Code

              of Civil Procedure.

                     The petitioner contended that the petitioner filed

              aforesaid suit for declaration and permanent injunction

              and other reliefs against the opposite parties before

              learned Waqf tribunal. In the plaint, the plaintiff alleged

              that opposite party no. 1 is in wrongful and unlawful
                  2




possession of portions of Zubiada Khatoon Waqf Estate at

premises no. 100 Dikusha Street (previously 22, Tiljala,

1st Lane) Kolkata. In the month of January, 2013, the

petitioner found that some persons are measuring the

aforesaid waqf estate and further enquiry revealed that

the opposite party nos. 2 and 3 are in the process of

ascertaining the boundaries of the waqf Estate vis a vis

boundaries of an alleged non-existent adjoining premises

no. 31/1 Tiljala Road claimed to be owned by opposite

party no. 1. There is no existence of any other premises

starting with number "31" abutting, adjoining, connecting

on touching the alleged non-existent premises no. 31/1

Tiljala Road,   Kolkata-46,   said premises No. 31 falls

under KMC wad no. 59, whereas Zubaida Khatoon Wakf

Estate falls under KMC ward No. 64. Similarly PIN Code

no. of address of said premises is 39, whereas PIN Code of

said Wakf Estate is 17. The predecessor in title of the

vendors of the opposite paty No. 1 was a tenant in respect

of portion of said wakf Estate and boundary given in the

schedule of the properly mentioned in the deeds of

opposite party No. 1 is incorrect and does not tally with

the boundaries or with schedule of earlier documents.

      The petitioner further submits that there is no

mother deed of the alleged premises no. 31/1 Tiljala Road

and the vendors of the opposite party no 1 claimed the

property under a will executed by Tarak Nath Banerjee on

19.4.1949

. He further submits title of a property cannot

be created through a will unless the testator at the time of

his death had the title of such property, which can only

be established through a document of title and not

otherwise. The claim of opposite party no. 1 is on the

basis of assessment record of Kolkata Municipal

Corporation which cannot be treated as conclusive proof.

The opposite party nos. 4 and 5, Mutwallis of Zubiada

Khatoon Waqf Estate have not taken any step for

protection and preservation of the said waqf Estate.

Plaint case is the opposite parties by their

aforesaid acts cast a cloud upon the waqf estate as such

the petitioner was compelled to file the aforesaid suit for

protection and preservation of wakf properties. In the said

suit, the petitioner also filed an application for injunction.

It is alleged in order to stall the hearing of the injunction

application the opposite party no. 1 took out an

application challenging the maintainability of the suit on

the ground that suit is barred under section 87 of the

Wakf Act, 1995 because premises no. 100, Dilkusha

Street, Kolkata-17 has been included in the wakf deed,

the same has not find it's place in the wakf register.

Learned waqf Tribunal by its order dated 28.2.2014

allowed the application of the opposite party no. 1 and

dismissed the suit of the petitioner as not maintainable

under Section 87 of the Waqf Act. Challenging the said

order, the petitioner preferred civil revisional application

before this court being C.O. 1144 of 2014 and said

application was allowed on contest by this court on

16.9.2015. The opposite party no. 1 challenging the

aforesaid order dated 16.9.2015, preferred special leave

petition (Civil no. 36023 of 2015 before the Hon'ble

Supreme Court, which was dismissed by the Supreme

Court keeping all the points open for decision as may be

available to the petitioner in law.

The opposite party no. 1 ultimately filed written

objection and the injunction application filed by the

petitioner in the said suit was taken up for hearing after

four years and was allowed on contest by the tribunal

vide order dated 7.2.2018 directing the opposite party no.

1/defendant no. 3 not to create third party interest till

disposal of the suit. During the hearing of the injunction

application, the opposite party has taken a plea that

premises no. 31/1, Tiljala Road is not mentioned in the

schedule of the plaint and that premises no. 31/1 is not

part and parcel of the waqf Estate but the waqf Tribinal

demolished the said argument of defendant no. 3 by

concluding that in the body of plaint and in the

application, it is alleged that a portion of the premises no.

100, Dilkusha Road has been curved out and created a

fictitious premises no. 31/1 Tiljala Road which is sought

to be declared as a part and parcel of the waqf estate in

the suit.

It is further alleged by the petitioner that in view of

the development of premises no. 31/1 Tiljala Road by the

opposite party no. 1 and transfer of various portions of

the building to various third parties during pendency of

the suit and further in view of the dubious stand of

opposite party no. 1 regarding existence and/ or non-

existence of premises no. 31/1 Tiljala Road, it became

necessary for plaintiff to bring on record those facts

which came to the knowledge during pendency of the suit

for better elucidation of the facts which is already on

record. Petitioner submits it is necessary and essential to

incorporate such fact in the body of the plaint and

accordingly, the petitioner filed the aforesaid application

under Order VI rule 17 of the Code of Civil Procedure for

amendment. Leaned tribunal by its order dated 28.3.2019

was pleased to reject the said prayer for amendment.

Learned counsel for the petitioner submits that

learned tribunal has failed to appreciate that the rejection

of the said amendment in plaint will amount to denial of

justice and shall enable to the opposite party no. 1 of to

take advantage of it's own wrongs. The tribunal failed to

appreciate that the same was filed to elucidate the facts,

which are already on record and to bring on record,

certain events which took place during pendency of the

suit. Learned trial court erred in holding that the

incorporation by way of amendment would change the

nature and character of the suit. On the contrary, the fact

already pleaded in the plaint is required to be elucidated

by way of amendment. The petitioner in this context has

relied upon two judgments, reported in AIR 2012 SC

2831 and AIR 2018 SC 2635.

Learned counsel for the opposite party submits

that the issues have already been framed and as such the

trial has already commenced and the petitioner has not

shown anything that in spite of due diligence he could not

bring such fact in the plaint by way of amendment before

commencement of trial. Accordingly, the proposed

amendment is barred under the proviso to Order VI rule

17 of the Code of Civil Procedure and if the proposed

amendment is allowed, it would cause serious prejudice

to the opposite party.

I have considered the submissions made by both

the parties and also perused materials on record.

While disposing the injunction application the

concerned Tribunal noted that in the body of plaint it is

alleged that a portion of premises no. 100, Dilkusha Road

has been curved out and created a fictitious premises no.

31/1 Tiljala Road which is sought to be declared as part

and parcel of the waqf estate enrolled under E.C. 9858. It

is also observed in the order that there is a dispute as to

whether the disputed premises no. 31/1 Tiljala Road is

part and parcel of the waqf estate enrolled under E.C.

9858 or not, which can only be decided on the basis of

evidence in course of trial. It also appears from the

impugned order that the tribunal has held that the main

prayer of the plaintiff through amendment application is

to incorporate premises no. 31/1 Tiljala Road into the

plaint and impleaded of the purchaser of flat of premises

no. 31/1 Tiljala Road, Kolkata-46 as defendants. It is

further observed in the impugned order that the premises

no. 31/1 is stated to be non-existence and the same is

reflected in the averments of the plaint and in the prayer

of suit but as per observation of the tribunal, in the order

dated 7.2.2018 the disputed premises no. 31/1 is

whether part and parcel of waqf estate or not shall be

decided on the basis of evidence during the course of

trial.

When tribunal has specifically held that there is

serious dispute between the petitioner and the opposite

parties as to whether the premises no. 31/1 Tiljala Road

is part and parcel of the waqf estate or not and which can

only be decided on the basis of evidence during trial then

it is not understandable how it can be taken into evidence

by the petitioner unless there is illustrative pleading on

that dispute.

In Mahila Ramkali Devi & others Vs. Nandram

& others reported in AIR 2015 SC 2270, Apex Court

held in Para 20 as follows:-

"20. It is well settled that 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, inadvertence or even infraction of rules of procedure. The court always gives relief to amend the pleading of the 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 cannot be compensated for by an order of cost."

The ground for refusal of amendment application

by Tribunal, is proposed amendment sought is contrary

to the facts in the plaint because by the proposed

amendment, plaintiff wishes to insert premises no. 31/1

and also wishes to implead more than 60 purchasers of

flats constructed over premises no. 31/1. The other

ground for refusal is such amendment prayer is

premature as during trial , if plaintiff succeeded to prove

that premises no. 31/1 is part and parcel of wakf Estate

only then petitioner's case will stand and as such at this

stage such inconsistent plea cannot be incorporated to

harass a large number of public.

Moreover petitioner has specifically alleged that

opposite party no. 1 by keeping petitioner's injunction

application in abeyance which was disposed of after four

years of filling had taken full advantage of it's own wrong

of delaying the disposal of the suit had developed the

portion of the wakf property by wrongly describing it as

premises no. 31/1. Accordingly as per petitioner's

allegation, when cause of action of said amendment arose

during pendency of the suit, proposed amendment ought

o have been granted because even after proposed

amendment basic structure of the suit will not be

changed in as much as suit will remain a suit for

adjudication as to whether said premises no. 31/1 is part

of wakf estate or not. It is not understandable if it is

permissible to take action against purchasers by the

petitioner in a different suit, why the same relief could not

be prayed for in the present suit by permitting plaintiff to

incorporate the same in the plaint by way of amendment.

It is needless to add that one of the main purpose for

considering prayer for amendment, is to minimize

litigation.

It is true that after framing of issue plaintiff has

came up with the proposed amendment and proviso to

order VI, Rule 17 provides that amendment of pleadings

shall not be allowed when the trial of the suit has already

commenced. But in present case it appears that proposed

amendment has been sought for elaborating he plaint

case, when the evidence of the suit has not yet started

and over an issue which allegedly took place during

pendency of suit.

In Revajeetu Builders & Developers Vs.

Narayanaswami and sons & others reported in (2009)

10 SCC 84 in Para 63 Apex Court has laid down factors

to be taken into consideration while dealing with

application for amendment which runs as follows:-

"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment: (1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."

Accordingly as proposed amendment is required

for proper and effective adjudication of the case and there

is nothing to show that the application is malafide or if it

is allowed it would cause such prejudice to the other side

which cannot be compensated adequately in terms of

money and also when proposed amendment if allowed

will not change basic nature and character of suit,

refusing petitioner's prayer for amendment may cause

multiple litigation.

In view of above, C.O. 1992 of 2019 is disposed of.

Pending application, if any, also stands disposed of.

Let the plaint be amended as per schedule of the