Pratyush Kumar Ray vs Khaitan Consultants Ltd. & Ors
2023 Latest Caselaw 7386 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      CIVIL REVISIONAL JURISDICTION
                            APPELLATE SIDE


The Hon'ble JUSTICE BIBEK CHAUDHURI


                                C.O 55 of 2018

                          Pratyush Kumar Ray
                                  -Vs-
                     Khaitan Consultants Ltd. & Ors.

      For the Petitioner:        Mr.Buddhadev Ghoshal, Adv.,
                                 Mr. Partha Banerjee, Adv.


      For the opposite party:           Mr. Mainak Bose, Adv.,
                                        Mr. Gaurav Khaitan, Adv.,
                                        Mr. Sachin Shukla, Adv.


Hearing concluded on: 15 September, 2023.
Judgment on: 17 November, 2023.

BIBEK CHAUDHURI, J. : -

1.

The instant civil revision is specially assigned before this Bench for

disposal.

2. An order of rejection of amendment of written statement applied by

the defendants having been rejected by the trial court vide order dated 6th

November, 2017, therefore the instant revision under article 227 of the

Constitution of India has been filed.

3. Suffice it to say that in a suit for eviction the defendants wanted to

amend the written statement after commencement of trial with a prayer to

incorporate the following facts:-

4. The original owner could not execute another lease deed in favour of

plaintiff for realization of rent when the suit property is in possession of

defendant No.1 and 2. The original owner was therefore unable to

handover the actual possession of the premises in suit to the alleged

second lessee. The plaintiff filed the suit on the basis of the alleged second

lease executed by the original owner, namely, Emerald Company in as

much as the same was expired by that time by efflux of time. Thus, the

defendants wanted to incorporate a dispute of landlord tenant

relationship between the plaintiff and the defendants. It is also stated that

creation of any tenancy over an existing tenant is not permissible. The

plaintiff compelled the defendants to become sub-tenant at the instance of

Emerald Company by executing the alleged lease deed in the absence of

the defendants. Therefore, the suit for eviction on the ground of subletting

is not maintainable at the instance of the plaintiff. The defendants also

wanted to plead that no transfer took place between the plaintiff and the

Emerald Company in accordance with the provision of Section 54 of the

Transfer of Property Act and as such no new tenancy can be created over

an existing tenancy which was in existence between the defendants and

the said Emerald Company.

5. It is not in dispute that the defendants are the legal heirs of the

original tenant. The plaintiff filed a suit against the defendants for a

decree for eviction, recovery of khas possession and other consequential

reliefs. The defendants appeared in the suit and filed written statement

denying all materials allegation made by the plaintiff in the suit.

Previously, during the tenancy of the suit this Court held in FAT 1195 of

2003, FAT 1132 of 2003 and FAT 798 of 2003 that Khaitan Consultants

Limited, defendant No.1 herein could not file any suit for eviction of the

alleged trespasser on the basis of the right conferred by the lease deed

executed in its favour. The present defendant No.1 being the plaintiff in

the said suit on the basis of which the above mentioned first appeals were

filed, preferred a special leave petition before the Hon'ble Supreme Court

against the decision of this Court passed in the above mentioned first

appeals. The special leave petition before the Hon'ble Supreme Court was

disposed of on 2nd September, 2015 with the following observation.

"Upon hearing the learned Counsel for the parties, we are of the view that the High Court ought not to have constrained one of the parties to amend the plaint. On this short ground, we are setting aside the judgment delivered by the High Court." In the said judgment at paragraph 6 their Lordships have been pleased to held that "The appeals shall be notified for hearing by the High Court on 02.11.2015 and it would be open to the parties to raise all contentions permissible in law before the High Court and the order of status quo prevailing on today, shall continue till 30.11.2015. The said order may be modified by the High Court after hearing the concerned parties, if thought necessary."

6. In the mean time the defendant No.1 died leaving behind her only

heirs and legal representative, namely Pratyush Kumar Ray the petitioner

herein. The defendant No.2 had withdrawn the application under Order 7

Rule 11 of the Code of Civil Procedure and subsequently filed the

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

Civil Procedure for amendment of written statement.

7. The opposite party No.1/plaintiff No.1 has filed a written statement

controverting all material allegations made in the application for

amendment of written statement. It is the specific case of the opposite

parties that by filing the application under Order 6 Rule 17 of the Code of

Civil Procedure the defendant/petitioner seeks to add certain facts which

would totally changed the nature and character of the defence of the

petitioner as well as take away valuable right of the plaintiff/opposite

party. By filing the application for amendment of written statement the

defendant has practically changed the locus standi of the plaintiff to

maintain the suit assailing his relationship with the plaintiffs as that of a

landlord and tenant. It is also alleged by the plaintiff that trial of the suit

has commenced and at this stage the petitioner cannot amend the plaint

as per the specific provision contained in Order 6 Rule 17 of the Code of

Civil Procedure. The petitioner cannot take advantage of the order of the

Hon'ble Supreme Court which was passed in a separate proceeding and

not in connection with this suit. Moreover, the petitioner himself withdrew

his application under Order 7 Rule 11 of the CPC wherein he challenged

the relationship of landlord and tenant between the plaintiff and the

defendants. Moreover, it is contended by the opposite party that the

petitioner can challenge the maintainability of the suit at the time of final

hearing of the matter.

8. Mr. Buddhadev Ghoshal, learned Advocate for the petitioner

submits that the petitioner's prayer for amendment of plaint was rejected

by the learned trail court on the ground that the fact stated in the

application for proposed amendment are facts of law since the trial has

commenced and the evidence of DW1 is complete, the plaintiff will not get

further opportunity to amend his pleading. Therefore, after the

commencement of trial the trail court refused to grant permission to

amend the written statement.

9. Referring to a decision in the case of State Bank of Hyderabad vs.

Town Municipal Council reported in (2007) 1 SCC 765, it is submitted

by Mr. Ghoshal that the proviso appended to order 6 Rule 17 of the CPC

to the effect 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, does not absolutely preclude a party to file an

application for amendment of pleading. Moreover, the ejectment suit was

filed by the plaintiffs in the year 1996 which was initially registered as

Ejectment Suit No.308 of 1996 before the learned City Civil Court at

Kolkata. Subsequently, the case was transferred to the Small Causes

Court in the Second Bench and the ejectment suit was renumbered as

643 of 2000. Section 16(2) of the Amendment Act of 2002 states:

"16(2) Notwithstanding that the provisions of this Act have come into force or repeal under sub- section (1) has taken effect, and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897.

(a) ...

(b) the provisions of rules 5, 15, 17 and 18 of Order VI of the First Schedule as omitted or, as the case may be, inserted or substituted by section 16 of the Code of Civil Procedure

(Amendment) Act, 1999 and by section 7 of this Act shall not apply to in respect of any pleading filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of this Act;"

10. In view of the said provision, there cannot be any doubt whatsoever

that the suit having been filed in the year 1996, proviso under Order 6

Rule 7 of the Code shall not apply.

11. Mr. Ghoshal next refers to a decision of this Court in

Ramendranath Banerjee vs. Pradip Kumar Sen reported in (2003) 2

CHN 359. The above referred decision speaks about the well known and

established principle with regard to amendment of pleadings to the effect

that the court may at any stage of the proceeding 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. It is also stated that the suit filed long before the commencement

of the Code of Civil Procedure (Amendment) Act, 1999 and the Code of

Civil Procedure (Amendment) Act, 2002 the proviso to Rule 17 of Order 6

shall not apply. Thus, the learned Magistrate was wrong to reject the

application for amendment of written statement on the ground that the

trial of the case has commenced.

12. Order 6 Rule 17 of the CPC deals with amendment of pleadings

which provides although the court may at any stage of the proceeding

allow either party to alter or amend his pleadings in such manner and on

such terms as may be just, all such amendments shall be made as may

be necessary for the purpose of determining the real questions in

controversy between the parties. From the bare perusal of this provision,

it appears that Order 6 Rule 17 of the Code consists of two parts. First

part is that the court may at any stage of the proceeding 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 controversy raised

between the parties. Therefore, in view of the provision made under Order

6 Rule 17 of the Code, it cannot be doubted that wide power and

unfettered discussion has been conferred on the ground to allow

amendment of pleadings to a party in such manner and on such terms as

it appears to the court just and proper. While dealing with 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. It is

also recorded that proviso to Rule 17 of Order 6 has perspective effect and

the said proviso is not applicable to the suits instituted prior to 1999

amendment of the Act. In Baldev Singh & Ors. Manohar Singh & Anr.

reported in (2006) 2 WBLR (SC) 904, the Hon'ble Supreme Court

permitted amendment of written statement even withdrawing certain

admissions made by the defendants in the written statement.

13. Mr. Mainak Bose, leanred Advocate for the opposite

parties/plaintiffs, on the other hand submits that in the original written

statement the defendant admitted the plaintiff as his landlord. After such

admission the defendants cannot now challenge the landlordship of the

plaintiff by filing an amendment of written statement. It is also submitted

by him that amendment of written statement does not permit the

defendants to withdraw admission made by the defendants in their

original written statement.

14. It is also submitted by Mr. Bose that in the trial court the petitioner

filed an application under Section 17(1) and 17(2) of the West Bengal

Premises Tenancy Act, 1956 for determination of relationship of landlord

and tenant between parties and arrear of rent. In the said proceeding the

trial court observed that the defendants accepted the present as their

landlord in respect of the suit premises and the plaintiff has been

continuing the ownership of premises even after the expiry of the lease

agreement on the basis of a letter issued by Emerald Company Ltd.

15. Referring to a recent decision of the Hon'ble Supreme Court in the

case of Life Insurance Corporation of India vs. Sanjeeb Builders

Private Limited and Anr. reported in 2022 SCC OnLine SC 1128, it is

submitted by Mr. Bose that in paragraph 70(iii) of the Hon'ble Supreme

Court observed:

70.(iii) The prayer for amendment is to be allowed

(i) if the amendment is required for effective and proper adjudication of the controversy between the parties, and

(ii) to avoid multiplicity of proceedings, provided

(a) the amendment does not result in injustice to the other side,

(b) by the amendment, the parties seeking amendment does not seek to withdraw any clear

admission made by the party which confers a right on the other side and

(c) the amendment does not raise a time barred claim, resulting in divesting of the other side of a valuable accrued right (in certain situations).

(iv) A prayer for amendment is generally required to be allowed unless

(i) by the amendment, a time barred claim is sought to be introduced, in which case the fact that the claim would be time barred becomes a relevant factor for consideration,

(ii) the amendment changes the nature of the suit,

(iii) the prayer for amendment is malafide, or

(iv) by the amendment, the other side loses a valid defence.

(v) In dealing with a prayer for amendment of pleadings, the court should avoid a hypertechnical approach, and is ordinarily required to be liberal especially where the opposite party can be compensated by costs.

(vi) Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more satisfactory decision, the prayer for amendment should be allowed.

(vii) Where the amendment merely sought to introduce an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed even after expiry of limitation.

(viii) Amendment may be justifiably allowed where it is intended to rectify the absence of material particulars in the plaint.

(ix) Delay in applying for amendment alone is not a ground to disallow the prayer. Where the aspect of delay is arguable, the prayer for amendment could

be allowed and the issue of limitation framed separately for decision.

(x) Where the amendment changes the nature of the suit or the cause of action, so as to set up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in the plaint, ordinarily the amendment is required to be allowed.

(xi) Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed. (See Vijay Gupta v. Gagninder Kr. Gandhi & Ors., 2022 SCC OnLine Del 1897)"

16. It is submitted by Mr. Bose that the proposed amendment of written

statement, if allowed will cause injustice to the plaintiff in view of the fact

that the defendants wanted to withdraw clear admission made by them

with regard to relationship of landlord and tenant in the written

statement.

17. In Ram Niranjan Kajaria vs. Sheo Prakash Kajaria & Ors.

reported in (2015) 10 SCC 203, it is clearly held by the Hon'ble Supreme

Court that amendment of pleading being wholly an attempt to resile from

the admission made by the defendant after a long period of time cannot

be permitted.

18. In M.S Modi Spinning & Weaving Mills Co. Ltd. & Anr. vs. M/s

Ladha Ram & Co. reported in (1976) 4 SCC 320, the Hon'ble Supreme

Court was pleased to hold that an amendment of plaint cannot be allowed

when the effect would be to displace the plaintiff's suit and deprive him of

a valuable right already accrued to him. In State of Bihar & Ors. vs.

Modern Tent House & Anr. reported in (2017) 8 SCC 567, it is held by

the Hon'ble Supreme Court that the amendment of written statement

sought by appellants/defendants at completion of evidence of

respondents/plaintiffs and that of appellants/defendants remaining, by

adding two paragraphs was indisputably to introduce certain facts to

elaborate facts originally pleaded in the written statement. It is

amplification of defence already taken. It does not introduce any new

defence compared to what has originally been pleaded in written

statement. If allowed it would neither result in changing the defence

already taken nor will it result in withdrawing any kind of admission, if

made in written statement. The plaintiffs would not be prejudiced, if such

amendment is allowed because notwithstanding the defence, or/and the

proposed amendment, the initial burden to prove case continues to

remain on plaintiffs and since trial is not yet completed, it is in the

interest of justice that proposed amendment of defendants should have

been allowed by courts below, rather than to allow defendants to raise

such plea at the appellate stage, if occasion so arises.

19. Thus, on careful perusal of the principles governing the field of

amendment of pleading and specially amendment of written statement it

appears that in the instant case the amendment of written statement

could have been allowed even after commencement of trial. If the

proposed amendment did not introduce a new fact and thereby taking

away admission with regard to relationship of landlord and tenant.

20. In the trial court, the defendants in their written statement clearly

admitted his relationship that the plaintiffs as that of landlord and

tenant. In the application under Section 17(1), 17(2) of the WBPT Act,

1956 it was decided by the trial court that the plaintiffs are the landlord

of the defendants. The said decision of the trial court was never

challenged by the plaintiff. At this stage of trial the plaintiff came up with

an amendment proposing that since the lease deed was not further

executed by extending the period in favour of the plaintiff, they are not

landlords of the defendants.

21. In view of the previous admission made by the defendants

themselves, the proposed amendment cannot be allowed. It is true that

the learned trial judge failed to assigned appropriate reasons for rejection

of the application for amendment of plaint but such fault on the part of

the learned trial judge cannot be a ground to allow the application for

amendment of written statement filed by the petitioner.

22. For the reasons stated above the instant revision is dismissed on

contest. The impugned order dated 6th November, 2017 is affirmed.

23. Lower court record, if any be send to the court below along with a

copy of this order.

24. Since the suit is pending from 1996, the trial court shall make all

endeavors to conclude the trial of the case by the end of this order

without granting unnecessary adjournments to either of the parties.

(Bibek Chaudhuri, J.)