Sri Sukumar Kanp & Ors vs Khudiram Patra
2023 Latest Caselaw 1205 Cal

                 IN THE HIGH COURT AT CALCUTTA
                  CIVIL REVISIONAL JURISDICTION
                          APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                            C.O. 2080 of 2021

                    Sri Sukumar Kanp & Ors.
                               Vs.
Khudiram Patra, since deceased, represented by Sri Narayan Patra &
                              Ors.

For the Petitioners           :     Mr. Suprabhat Bhattacharya


For the Opposite parties      :    Mr. Asish Chandra Bagchi
                                   Ms. Malyasree Maity


Heard on                      :     06.02.2023

Judgment on                   :     15.02.2023


Ajoy Kumar Mukherjee, J.

1. Being aggrieved and dissatisfied with the order no. 126 dated 28.09.2021

passed by the learned Civil Judge (Junior Division), 3 rd Court, Tamluk, Purba

Medinipur in Title Suit No. 117 of 2010 present application under Article 227

of the Constitution of India has been preferred. By the impugned order learned

Court below has been pleased to reject plaintiff's prayer for amendment of

plaint.

2. Petitioner contended that the aforesaid Title Suit against opposite parties

was filed with prayer for declaration of title in the (ka) schedule property and

also for a declaration that the plaintiffs have inherited the said property and

the opposite parties have no right title or interest in the said property under

any capacity and also for permanent injunction. Petitioner states that the

Schedule property originally belonged to one Amiya Ranjan Maity son of

Sashibhusan Maity and Amiya Ranjan Maity was in khas possession in the

said land by making cultivation and his name was duly recorded in the record

of rights. Subsequently said schedule property was sold to the predecessor of

the plaintiffs, Madhusudan Kanp by a deed of sale dated 01.08.1956.

Madhusudan after purchase digged a pond on a portion of the said Schedule

land and some portion converted into Bastu where he had built a house and

was in possession. The plaintiffs in their turn were resided in the said house to

look after the said property. The name of Madhusudan kanp was recorded in

the L.R. Record of Rights but due to mistake the area of land has not been

shown correctly. Madusudan Kanp sold 78 decimal of land from "Kha"

schedule and rest 2.42 decimal of land was in his possession. Plaintiff's further

case is Madhusudan Kanp died sometime in the year 2000 and as such the

plaintiffs inherited the said property as his legal heirs and representative.

Petitioner further submits that the opposite parties No.1(ka) to 1 (cha) are

claiming themselves as Bargadar in respect of a portion of "Ka" schedule suit

property but the plaintiff are not served with any notice in respect of recording

of their names as Bargadar and further contended that recording their names

as "Bargadar" is erroneous and baseless.

3. The evidence of both the parties have concluded and after closing of

evidence the petitioners filed aforesaid application for amendment of plaint on

24.07.2019. By the said application for amendment the plaintiffs want to

incorporate as to how and in what manner their vendor Amiya Maity got the

suit property and if the said facts be not incorporated in the plaint that will

cause serious prejudice to the plaintiff. In support of their delayed filing of

application for amendment, plaintiffs contended that at later stage they came

to know about the fact relating to way of acquisition of title by Amiya Maity in

connection with the suit property, from whom plaintiffs father purchased the

suit property.

4. Learned counsel appearing on behalf of the petitioner further submits, if

the proposed amendment is allowed it will not change nature or character of

the suit nor it will create any new or inconsistent pleading. But the trial court

rejected the said application on the ground that it has been filed at a belated

stage. According to the petitioner the court below was wrong in not considering

the facts for determination in the suit and that documents relating to proposed

amendment are very old which is dated 02.09.1930. In spite of due diligence

plaintiff/petitioner could not have raised the matter before the commencement

of trial. He further submits that proposed amendment is very much necessary

in order to determine the real question in controversy between the parties.

5. Learned Counsel appearing on behalf of the opposite party raised

objection and referred proviso to order VI rule 17 of the Civil Procedure code

and contended that the evidence of both the parties have already been closed

and as such the trial court was justified in rejecting the prayer for amendment

as plaintiff miserably failed to make out any case of due diligence and as such

the order impugned does not call for any interference by this court.

6. On perusal of plaint it appears that the plaintiff has filed said suit for

declaration of their right title interest in the "Ka" schedule suit property and

also for injunction restraining defendants from disturbing plaintiffs' possession

in the 'ka' schedule suit property along with other reliefs. The 'ka' Schedule

property in the plant has been described as property measuring 2.42 decimal

(according to record 2.31 decimal) in plot no. 5992 at Mouza Seorabera and

'Kha' schedule has been described as LR Plot No. 5992 measuring 3.24 decimal

(as per recording 3.10 decimal) out of total land of 4.54 decimal.

7. On perusal of both side contentions, it is clear that real dispute lies

between the parties is whether plaintiffs have acquired any right title interest

in the schedule mentioned suit property or not and whether the defendants

have Bargadarship right in connection with schedule property or not. This is

because in the evidence of DW-1, Narayan Chandra Patra has clearly stated

that in the LR record of rights though the father's name of DW-1 has been

correctly recorded as Bargadar but the rayet's name has been wrongly written

as Madhusudan Kanp, which should have been recorded in the name of

Chittranjan Maity or his successor and said DW-1 flatly denied that 3.24

decimal land in plot no. 7633 was ever owned by Amiya Ranjan Maity and said

DW-1 specifically stated in his evidence that the defendants are in possession

of the suit land measuring 2.31 decimal as Bargadar. Plaintiff in their plaint

denied defendant's bargadarship right and averred that they are in exclusive

possession of said property. In view of above what the court below is required

to ascertain in the suit is whether defendant has any right to possess the

Schedule suit property measuring 2.31 decimal as alleged, as of right claiming

themselves as Bargadar.

8. In view of section 21 (3) of the West Bengal Land Reforms Act 1955, if

any question arises as to whether a person is a Bargadar or not in respect of

the suit property that question must be referred to the prescribed authority

appointed under section 18 (1) of the Act for decision and such court is to

dispose of the suit in accordance with the decision communicated to it by the

said officer or authority, to whom the question was referred. Since in the

present suit plaintiffs have denied defendants Bargadarship right to possess

the land and since plaintiffs have prayed for permanent injunction against

defendants restraining their possession, such issue should have been referred

to said authority for decision, for effective adjudication of issue pertaining to

injunction.

9. Similarly when the plaintiff has claimed that their father Madhusudan

Kanp got the suit property by way of deed of purchase from Amiya Ranjan

Maity and when such facts have been denied and disputed by the defendants

stating that it was originally belonged to one Chittranjan Maity and it was

never a property of Amiya Ranjan Maity and Amiya Ranjan Maity did not have

right to execute deed in favour of plaintiff's predecessor, such denial of title

casts cloud in plaintiff's title in the suit properties and gives rise to cause of

action to file the said suit for declaration claiming their right title interest in the

suit property. Here comes the relevance of proposed amendment, and learned

court below should have adjudicated the amendment application keeping it in

mind whether amendment is necessary to decide real question in controversy

and also whether proposed amendment if allowed, will cause any prejudice or

injustice to other party, which cannot be compensated adequately interms of

money.

10. It appears that from order impugned that learned court below rejected

the plaintiffs prayer for amendment only on the ground that the suit has

already attained at its maturity stage, where evidence on the part of both the

parties have concluded and argument also been heard in part. So the court

below declined to allow the said prayer for amendment on the ground that the

plaintiff by way of amendment wants to cover up the lacuna. Learned court

below has not explained what lacuna plaintiff is trying to cover up by the

proposed amendment.

11. In view of Revajeetu Builders and developers Vs. Narayanaswamy

and sons and others reported in (2009) 10 SCC 84 the Apex Court in

paragraph 63 has laid down the factors to be taken into consideration while

dealing with the applications for amendments which are 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."

12. Accordingly the power to grant amendment to pleadings is intended to

serve needs of justice and is not governed by any narrow or technical

limitation as Rules of procedure are intended to be handmaids of

administration of justice. It is also well settled that the dominant purpose

behind consideration of an amendment application is to minimize the litigation.

13. The golden rule which emerges from the judicial pronouncements is in

order to consider an application for amendment, the court is to look into

whether such application for amendment is malafide worthless dishonest and

design to delay legal proceeding then it should be discouraged but on the

contrary if the amendments sought is bonafide, legitimate, honest and

necessary the court is required to decide the same accordingly.

14. Keeping in view the parameters as laid down in Revajeetu Builders and

Developers Case (Supra) if the fact of the present case as narrated above is

examined, it clearly established that the court below is required to adjudicate

as to whether plaintiffs have right title interest in the schedule mentioned suit

property or not and whether defendant has right to possess any portion of the

suit property or not and whether plaintiff is entitled to get any order of

injunction against the defendants or not. If these are the subject matter of

dispute then for adjudication of the said dispute the court below should have

considered as to whether proposed amendment is required to adjudicate above

mentioned disputes between the parties or not and for that, belated filing of

application whether can stand in the way or not, and for that purpose whether

without the proposed amendment the real controversy between the parties as

stated above can be adjudicated or not.

15. In view of above the case is remanded before the court below to

adjudicate the impugned amendment application afresh taking into

consideration whether proposed amendment of the plaint is at all required to

adjudicate the real controversy raised by the parties, or not.

16. Accordingly the order impugned dated 28.09.2021 passed by the learned

Civil Judge (Junior Division), 3 rd Court, Tamluk, Purba Medinipur in Title Suit

no. 117 of 2010 is hereby set aside. Learned Court below is directed to hear

and dispose of aforesaid application afresh in the light of the above

observations within a period of three months from the date of communication

of the order.

17. C.O. 2080 of 2021 is accordingly disposed of.

There will be no order as to costs.

18. Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(AJOY KUMAR MUKHERJEE, J.)