Smt. Sarala Mahato & Ors vs Smt. Anguri Mahato & Ors
2022 Latest Caselaw 7004 Cal

In the High Court at Calcutta Civil Revisional Jurisdication Appellate Side

Present:-

The Hon'ble Justice Subhasis Dasgupta.

C.O. No. 810 of 2022 Smt. Sarala Mahato & Ors.

Vs.

Smt. Anguri Mahato & Ors.

For the Petitioners                : Mr. Chittapriya Ghosh,
                                     Ms. Priyanka Saha,
                                     Ms. Komal Singh.

For the Opposite Parties           : Mr. Falguni Bandyopadhyay,
                                     Ms. Riya Ballav.

Heard On                           : 08.09.2022, 29.07.2022.

Judgment                           : 27.09.2022.

Subhasis Dasgupta, J:-

Rejection of a prayer for amendment is under challenge in this case.

By order dated 11th March, 2022, Learned Civil Judge (Junior Division),

2nd Court, Purulia in Title Suit No. 72 of 2008 rejected such amendment.

Mr. Chittapriya Ghosh, learned advocate appearing for the

petitioners/plaintiffs submitted that by the proposed amendment, the

incident held on 30.06.2021, relatable to dispossession of

petitioners/plaintiffs from the suit property, for the defendants having

trespassed into the suit land, had been sought to be introduced upon

inviting an amendment, but the same was rejected by the court below.

The alleged story of dispossession of petitioners/plaintiffs from the

suit property is also subject to another claim of recovery of possession in

the pending litigation.

It was thus contended by Mr. Ghosh that it was a subsequent event

that had taken place during the pendency of litigation, and the proposed

amendment ought to have been allowed by the court below.

Reliance was placed by Mr. Ghosh on a decision reported in 2022

SCC OnLine SC 1128 delivered in the case of Life Insurance

Corporation of India Vs. Sanjeev Builders Private Limited and

Another, to enforce the stand of petitioners that the proposed amendment

should have been necessarily allowed for determining the real question of

controversy, as the same would not cause injustice or prejudice to the

other side.

While making elaboration of such issue, Mr. Ghosh submitted that

by the proposed amendment, the petitioners did not seek to withdraw, nor

it had a relatable reference to a time barred claim, and would enable the

court to pin-pointedly consider the dispute and would further aid in

rendering a satisfactory decision.

It was thus emphasized by Mr. Ghosh that delay in applying for

amendment alone, would not be the ground to disallow the same, for the

aspect of delay being arguable one.

Mr. Falguni Bandyopadhyay, learned advocate appearing for the

opposite parties submitted, denying the submission of Mr. Ghosh, that the

story of alleged dispossession had been cooked up, as

defendants/opposite parties were all along in possession of suit property,

on the strength of sale deed, executed in the year 1971, for more than 50

years.

It was thus submitted by the opposite parties that the date of

alleged dispossession, mentioned in the schedule to the plaint for

amendment, is fictitious one, and more so, there had been three previous

amendments already allowed on the prayer of petitioners with costs, for

which the instant amendment, being fourth one, should not have been

allowed in context with the principle, that piecemeal amendment would be

contrary to the sanction of law.

As the proposed amendment was relatable to infraction of Articles

64, 65 of the Limitation Act, and provisions of Specific Relief Act, amount

of court fees, liable to be deposited, before hearing of amendment petition

together with valuation of the suit property, should have been ascertained

first, by calling a report from District Registrar for the purpose.

Further challenge was raised by Mr. Bandyopadhyay that at the

belated stage of the suit, the proposed amendment should not be

considered ignoring the proviso contained in Order 6 Rule 7 of Code of

Civil Procedure.

Reliance was placed by learned advocate for the opposite parties on

a decision reported in 2010 SCC OnLine P&H 1317 delivered in the case

of Khusi Ram Vs. Murli Manohar Thatheran Panchayati Mandir &

Dharamsala to contend that no amendment could be allowed after

commencement of trial, unless the court comes to conclusion that in spite

of due diligence, the parties could not have raised the matter before the

commencement of the trial.

While making elaboration of such decision, Mr. Bandyopadhyay

submitted that the commencement of the trial having been taken place

already, the petitioners seeking amendment had failed to establish that

despite due diligence he could not have invited the proposed amendment

earlier.

Reliance was further placed on a decision reported in AIR 1996

Supreme Court 2358 delivered in the case of Radhika Devi Vs.

Bajrangi Singh & Ors. to contend that when by the proposed

amendment, the petitioners had proposed for recovery of possession, the

effect of the amendment would be to take away a legal right, what

opposite parties had accrued in the meantime with the passage of time, on

the strength of their alleged uninterrupted, continuous possession vide

their sale deed executed in the year 1971 with respect to subject property

under reference.

In reply Mr. Ghosh submitted that though issues in this case had

already been framed on 17th July, 2019, but no witness thereafter had

been examined, followed by tender of evidence-in-chief, under Order 18

Rule 4 C.P.C.

According to Mr. Ghosh, there had been no effective commencement

of trial, as the affidavit-in-chief could not be furnished, as yet.

Rejection of prayer for amendment is virtually on fundamental

ground, for attracting the mischief, mentioned in Order 6 Rule 17 C.P.C.,

for the amendment having being proposed at the belated stage, i.e. after

the commencement of trial.

The schedule of the proposed amendment goes to show that during

the pendency of the litigation, the petitioners claimed to have been

dispossessed on 30th June, 2021, for which the petitioners proceeded to

incorporate a prayer for recovery of possession of the land, already

dispossessed, which is grossly challenged by the opposite parties.

Upon seeing the schedule of proposed amendment, it appears that

amendment if allowed, would not change the nature and character of the

pending suit.

The proposed amendment would, however, facilitate the court below

to unfold the controversy surfaced at the moment, giving appropriate

decision for the purpose.

The story of dispossession, followed by insertion of a prayer for

recovery of possession is always subject to proof, but it has a strong nexus

with the denial of dispossession, disclosed in the written objection of the

opposite parties, filed by against the proposed amendment. The claim of

dispossession of the petitioners, as well as the claim of long continuous

and uninterrupted possession of subject land, since 1971, is a disputed

question of facts and law, which cannot be decided without entering into

trial of this case.

At the same time, the alleged claim of dispossession of petitioners,

followed by claim for recovery of possession, though advanced at a later

stage, since initiation of the suit, the same should not be refused, upon

merely viewing the objection raised by the opposite parties, claiming all

along possession of the suit property, since 1971.

Since, the opposite parties incidentally raised the valuation of suit

plot and consequent payment of court fees, liable to be deposited, the

same may be raised, if necessary, upon filing a separate application for

the purpose, challenging the maintainability of the suit.

Merely upon raising a challenge, disputing with the valuation of the

suit plot together with alleged less payment of court fees, the prayer for

amendment should not be refused.

This is a suit of 2008, in which there has been as many as three (3)

amendments allowed already. Piecemeal amendment is undoubtedly not

encouraging one. But the petitioners having set forth the date, in Para-12

of the proposed amendment, disclosing therein that on 30th June, 2021,

the petitioners had been dispossessed by the opposite parties, which

though challenged to be a fictitious one by the opposite parties, the same

in the absence of evidence being recorded, would be very difficult to attract

the mischief available under Order 6 Rule 17 C.P.C. Merely for the delay

being caused in inviting the proposed amendment, the delay thus caused

should not be critically viewed giving precedence to technicalities, for the

peculiarities of the circumstances involved in this case.

Since an effort has been there to seek piecemeal amendment, the

proposed amendment needs to be considered giving some substantial

amount of costs.

For the discussions made hereinabove, the revisional application

succeeds.

The impugned order is set aside subject to payment of costs of

Rs.25,000/- (Rupees Twenty Five Thousand Only) to be deposited by

petitioners to opposite parties within the second (2nd) week after reopening

of the Puja Vacation of the court below.

It is, however, clarified that after deposition of costs within the

period mentioned hereinabove, the amended copy of the plaint may be

furnished within three (3) days thereafter, upon supplying the same to the

opposite parties/defendants.

Learned court below is directed to accept the amended copy of

plaint. The court below is further directed to fix a suitable date within one

(1) week thereafter, permitting the opposite parties/defendants to furnish

additional written statement, if any, in accordance with law.

This would not, however, prevent the court below to frame any

additional issues, if any, in context with the proposed amended pleadings,

as mentioned hereinabove.

Since, there has been sufficient period of time already lapsed, the

logical conclusion of the suit may be reached expeditiously as possible,

preferably before end of September, 2023.

The revisional application is thus disposed of.

Parties are directed to make communication of this order to the

learned court below.

Urgent photostat certified copy of this order, if applied for, be given

to the parties, upon compliance of all formalities, on priority basis.

(Subhasis Dasgupta, J.)