M/S. Shree Krishna Welding Works vs Sri Uma Shankar Singh
2023 Latest Caselaw 3596 Cal

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                      IN THE HIGH COURT AT CALCUTTA
                          Civil Revisional Jurisdiction
                                 Appellate Side



                                    Present:

                 The Hon'ble Justice Biswaroop Chowdhury


                              C.O. 3401 of 2022
                      M/s. Shree Krishna Welding Works

                                   VERSUS

                           Sri Uma Shankar Singh




For the petitioner:                        Mr. Animesh Paul, Adv.

                                           Mr. Aniruddha Chatterjee, Adv.
For the opposite party:                    Mr. Rishabh Karnani, Adv.
                                           Mr. Pranav Sharma, Adv.
                                           Mr. Ajit Pandey, Adv.



Judgment on: May 19, 2023

Biswaroop Chowdhury,J:


      The petitioner before this Court is a tenant/defendant in a suit for

eviction and is aggrieved by the Order dated 09/02/2023 passed by the

Learned Civil Judge (Junior Division) 1st Court at Howrah in Title Suit No. 144

of 2010 in allowing prayer of plaintiff/Landlord for amendment of plaint.


      The case of the petitioner/defendant may be summed up thus:
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1.

One Amit Kumar Chamaria and Ashok Kumar Jalan being plaintiffs have

filed a suit for recovery of possession and mesne profit being Title Suit

No. 144 of 2010 against the petitioner herein in the Court of the Learned

Civil Judge (Junior Division) 1st Court at Howrah. Subsequently during

pendency of the said suit the said plaintiffs have transferred the suit

property in favour of the present opposite party and thereafter the

present opposite party was substituted as sole plaintiff in the said suit

for recovery of Khas Possession in place of the said original plaintiffs. The

said suit was filed only on the ground of default of rent.

2. The petitioner is contesting the said suit by filing its written statement.

3. The plaint of the said suit was amended in the year 2019, upon allowing

of an application for amendment under Order VI Rule 17 read with

Section 151 of the Code of Civil Procedure 1908 filed by the plaintiff and

by the said amendment another ground for eviction being violation of

provisions (m), (o) and (p) of Section 108 of Transfer of Property Act was

amended in the said suit.

4. In the year 2022 the opposite party has again filed an application for

amendment under Order VI Rule 17 read with Section 151 of the Code of

Civil Procedure 1908 whereby the opposite party has prayed for

amendment of the cause title of the plaint along with related corrections

and addition of another alleged ground of Section 2(g) of the West Bengal

Premises Tenancy Act 1997. It was averred by the opposite party herein

that from the written statement filed by the petitioner herein on

10.03.2011 the opposite party herein came to know that the original

tenant died on or before the said date and thus the petitioner's present

proprietor has no right to possess suit property.

5. The petitioner submitted its written objection to the said application for

amendment filed by the opposite party herein. It was contended by the

petitioner that the fact was well known to the opposite party herein since

more than 10 years and there has been amendment of the plaint

previously in the year 2019. It was further contended that the petitioner

company being the tenant, the application of Section 2(g) of the Act of

1997 does not and cannot arise. It was also contended that at the

belated stage of suit, addition of a new ground will certainly change the

nature and character of the suit and as such it was prayed that the said

application for amendment be rejected.

6. By Order dated 05.08.2022 learned Court below was pleased to allow the

prayer for amendment on contest.

7. The petitioner being aggrieved by the impugned Order dated 05.08.2022

passed by Learned Court below has come up with the instant

application.

It is contended by the petitioner that the Learned Court below failed to

consider the scope and ambit of the provisions contained under Order VI Rule

17 of the Code of Civil Procedure 1908. It is further contended that the Learned

Court below acted illegally and with material irregularity in failing to consider

that the said application for amendment of the plaint having been filed at such

belated stage of the suit and more particularly after a period of 12 years cannot

be allowed. It is also contended that the proposed amendment in no way was

required for proper and effective adjudication of the suit and the statutory

ground of Section 2(g) of West Bengal Premises Tenancy Act 1997 not needed

to be amended and the same being a point of law can always be taken at the

time of hearing of the suit.

Heard Learned Advocate for the petitioner and Learned Advocate for the

opposite party. Perused the petition filed, written notes of arguments, and

materials on record.

Learned Advocate for the petitioner submits that allowing the proposed

amendment would make a total sea change with regard to the case made out in

the plaint of the suit which is impermissible under the law. Learned Advocate

further submits that the cause of action of the suit is based on the ejectment

notice dated 02.06.2010 sent to the defendant, thereby accepting this

defendant as tenant and as such the proposed amendment of the pleading to

the effect that the father of this defendant was the tenant and this defendant is

a trespasser in view of Section 2(g) of the said Act of 1997, is being mutually

destructive, contradictory and inconsistent to each other which is not

permissible and amounts to substituting and altering of the cause of suit.

Learned Advocate relies upon following two decisions of Hon'ble Supreme

Court.

Usha Benashaheb Swami and ors Vs. Kiran Appaso Swaml and ors reported

in AIR - 2007. S.C. P. 1663.

Malkiat Singh Vs Kasturbe Gandhi Memorial Trust and ors reported in

2022(3) ICC. 224.

Learned Advocate submits that it is well settled that the amendment in the

pleadings by way of adding mutually destructive inconsistent/contradictory

pleas/reliefs/claims is not permissible. It is further submitted by the Learned

Advocate that the Hon'ble Apex Court in the case of Alkapuri co-operation

Housing Society Ltd. Vs. Jayantibhai Naginbhai reported in AIR - 2009 S.C.

1948 have settled that there cannot be any doubt or dispute that an

application for amendment of the plaint seeking to introduce a cause of action

which had arisen during pendency of the suit stands on a different footing than

the one which had arisen prior to the date of institution of the suit and it is

impermissible to alter the basic structure of the suit. Learned Advocate also

submits that according to the decision of the Hon'ble Supreme Court in the

case of Radhika Devi Vs. Bajrangi Singh and Ors reported in AIR - 1996. S.C.

P.2358. the amendment of the plaint cannot be allowed in case the same would

result in prejudicially affecting the rights of the other party which had accrued

to him by lapse of time.

Learned Advocate for the opposite party submits that the plaintiff/opposite

party stepped into the shoes of the original plaintiffs upon the suit property

being transferred by a registered Deed of conveyance to the opposite party by

former plaintiffs. Pursuant to purchase of suit property the opposite party by

way of application under Order 22 Rule 10 of the Code of Civil Procedure got

himself substituted in the suit. On 29-06-2022 the opposite party filed an

application under Order 6 Rule 17 read with Section 151 of the Code of Civil

Procedure praying for amendment of the plaint necessitated on account of

change in circumstances during pendency of the suit as the original tenant,

Krishna Chandra Das was not alive on 10.03.2011 i.e. the date of filing of the

written statement which came to the knowledge of the opposite party only after

going through the verification and affirmation of the written statement. Learned

Advocate submits that it is the specific case of the plaintiff/opposite party that

the opposite party has stepped into the shoes of the original plaintiff only in

2021 after purchasing the suit property and therefore there has been no delay

on the part of the opposite party in filing the application under Order VI Rule

17. It is settled law that an assignee who inherits the status of the assignor has

the right to add to the case made out by the assignor after being assigned the

interest of the assignor. Learned Advocate further submits that in terms of the

Judgment passed by the Hon'ble Apex Court in Ram Awadh Vs Acchaibar

Dubey and Anr. reported in 2000(2) SCC. P - 428. And Kadupugatha

Varalokshami Vs Vudugiri Venkata Rao and Ors reported in 2021 SCC online

S.C. 365 the substituted plaintiffs being the opposite party herein cannot be

estopped from taking statutory point at the instant stage citing delay

eventhough the original plaintiffs have not sought to amend the plaint and add

the necessary pleadings in respect of Section 2(g) of the West Bengal Premises

Tenancy Act. It is also submitted that it is a settled proposition of Law that

there cannot be any estoppel against a statute and the points of law can be

raised at any stage of the proceedings and a party cannot be estopped from

taking a statutory plea on the ground of delay. Learned Advocate submits that

in terms of the decision of Hon'ble Apex Court in the case of Andra Bank Vs.

Abn Amro Bank NV and Ors reported in (2007) 6 SCC. 167 at the time of

considering prayer for amendment the Court cannot go into the question of

merit of such amendment. In the case of Revayeetu Builders And Developers

Vs. Narayanswamy and sons and others reported in (2009) 10 SCC P-84 the

Hon'ble Supreme Court held that the Court while exercising its discretion shall

be first satisfied that such amendment is necessary for the determination of

the real question in controversy and if the amendment sought to be

incorporated does not change the nature and character of the suit/proceedings

such amendment should be allowed.

Learned Advocate relies upon the following decision:

Ranjit Singh and Anr Vs. Smt. Sipra Sarkar reported in 2023 (1) ICC. P -

961.

Upon hearing the Learned Advocates and considering the facts of the case

this Court is of the view that as the dispute relates to amendment of plaint it is

necessary at the very outset to consider the provision of amendment as

provided under Order VI Rule 17 of the Code of Civil Procedure.

Order VI Rule - 17 of the Code of Civil Procedure provides as follows:

'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."

In the instant case although the suit is fixed for P.H. Board but the

examination of witness did not commence thus a rigid view may not be taken

as the trial has not progressed. The Hon'ble Supreme Court in the case of

Gurbaksa Sing Vs. Buta Sing allowed the prayer for amendment on the ground

that there was inability of the party to obtain correct particulars well in time

i.e. before filing of the suit or commencement of trial and trial had not

progressed much only two official witnesses were examined.

In the case of Bhany Prakash V. Munnalal reported in AIR - 1979. MP. P -

157 the Hon'ble Court observed that the law is well settled that though the

rights of the parties have normally to be decided on the date of the suit the

Court can if the interest of justice require it take notice of the subsequent

events and grant appropriate reliefs.

In the case of Rajeshwar Dayal V. Kathari reported in AIR - 1970. Raj. 77

the Hon'ble Court observed that the Court would take notice of the changed

circumstances whereby reason of subsequent fact the original relief claimed

has become inappropriate.

It has been held in different judicial pronouncements that when the

proposed amendment has the effect of withdrawal of admission in the original

pleading, the same should not be allowed.

In the instant case there is no allegation that there is admission of any fact

by any party in the pleadings. The plaintiff/opposite party has not proposed to

withdraw any admission made in the plaint or petition. The plaintiff/opposite

party upon relying on a fact made in the pleadings of the defendant/petitioner

which the plaintiff came to know from the petition of the defendant raised a

claim on the ground of law which came into operation on the occurrence of a

particular event. As there cannot be estoppel on any provision of law the

plaintiff/opposite party cannot be precluded from raising the said point of law

for adjudication of the case. As per public policy there should be prevention of

multiplicity of litigations thus Courts are empowered to take into consideration

subsequent event to prevent multiplicity of litigations where consideration of

subsequent fact is necessary for proper adjudication of the dispute.

Now the point for consideration is whether the proposed amendment

changes the nature of the suit.

At the very outset it is to be remembered that as the suit was instituted

under Section 6 of the West Bengal Premises Tenancy Act 1997, whether by

proposed amendment jurisdiction of the learned Court below is ousted or not.

The answer is in the negative. As the learned Court below still retains

jurisdiction to adjudicate the suit it is also necessary to see as to whether there

is any change of the relief claimed. It appears that the suit which was

instituted to evict the tenant/defendant by praying decree for eviction there is

no alteration in reliefs claimed.

The petitioner/defendant who inherited the tenancy from the original tenant

continued to remain in the suit property and contest the suit for eviction. The

defendant/petitioner will now be required to contest the suit for eviction on a

new ground which has come into existence during the pendency not by act of

any party but by operation of law. Thus it cannot be said that there is total

change of nature of suit.

Thus upon considering the facts of the case this Court is of the view that

there is no error in the order allowing amendment by Learned Trial Court.

However, considering the fact that the prayer for amendment was made after

the case was fixed at P.H. Board the defendant/petitioner should be

compensated by costs.

Hence this Revisional Application stands disposed. Order dated 5/08/2022

passed by Learned Civil Judge Junior Division 1st Court Howrah in T.S. 144 of

2010 stands modified to the extent that the order of amendment shall be

carried out upon payment of costs of Rs. 5,000/- (Rupees five thousand) by

opposite party to the petitioner. Other contents of the order of Learned Trial

Court remain unaltered.

Urgent photostat certified copy of this order, if applied for, should

be made available to the parties upon compliance with the requisite formalities.

(Biswaroop Chowdhury, J.)