Page No.# 1/7 vs M/S. Kaizen Constructions And Anr
2021 Latest Caselaw 2843 Gua

                                                                 Page No.# 1/7

GAHC010127622012




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : CRP/137/2012

         ON THE DEATH OF MD. HARUNOR ROSHID, HIS LEGAL HEIR JYOTSNA
         ROSHID AND ANR
         WIFE OF LATE HARUNOR ROSHID, R/O HOUSE NO. 8, BYELANE NO. 1,
         AJANTA PATH, BELTOLA, SURVEY, GUWAHATI-781028, IN THE DISTRICT
         OF KAMRUP(M), ASSAM.


         2: ZEHIRUL ISLAM ROSHID
          SON OF LATE HARUNOR ROSHID
          R/O HOUSE NO. 8
          BYELANE NO. 1
         AJANTA PATH
          BELTOLA
          SURVEY
          GUWAHATI-781028 IN THE DISTRICT OF KAMRUP(M)
         ASSA


         VERSUS


         M/S. KAIZEN CONSTRUCTIONS and ANR.
         NO.3, MODHGHORIA, AMYAPUR PATH, GUWAHATI, IN THE DISTRICT OF
         KAMRUP, ASSAM.

         2:MR. NOZOOM REHMAN HAZARIKA
          SON OF LATE NURUL REHMAN PROPRIETOR
          M/S KAIZEN CONSTRUCTIONS
          RESIDENT OF GOVERNMENT PRESS ROAD
          BAMUNIMAIDAM
          GUWAHATI- 781021
          IN THE DISTRICT OF KAMRUP
         ASSAM
                                                                        Page No.# 2/7

Advocate for the Petitioner   : MR K SAHARIA

Advocate for the Respondent : MR.G BORDOLOI




                                    BEFORE
               HON'BLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA


                                       JUDGMENT

Date : 09-11-2021

Heard Mr. S.R. Gogoi, learned counsel for the petitioner. Also heard Mr. A. Iqbal, learned counsel for the respondents.

2. The petitioner Md. Harunor Roshid entered into a memorandum of agreement on 16.12.2003 with the respondent Sri Nozoom Rahman Hazarika being the proprietor M/s Kazen Construction, for development of a plot of land of which the petitioners were the owner.

3. One of the terms of the agreement was that the respondents would pay the petitioners an amount of Rs.5,00,000/-(rupees five lakh) as earnest money and after developing and constructing the residential apartment building on the land concerned, 20% of the saleable area would be provided to the petitioner. On a violation of the aforesaid agreement to provide 20% of the saleable area to the petitioner, Title Suit 1137/2006 was instituted in the Court of Civil Judge, Junior Division No.2, Guwahati, amongst others claiming for declaration that the agreement dated 16.12.2003 between the petitioner and the respondent is binding on the parties and the respondents are bound to hand over the possession of 20% of the total saleable apartment area of the multistoried building that was constructed over the scheduled plot of land and further for a permanent injunction restraining the respondents from transferring the Page No.# 3/7

ownership and handing over possession of the ownership flats of the multistoried building to any other purchaser, without handing over 20% of the total flat area to the petitioner. It is stated that in course of leading evidence in Title Suit 1137/2006, DW-1 Nozoom Rahman Hazarika in his cross-examination has made a statement that the entire flat/saleable area of the multistoried building was already sold off and therefore, a specific performance of the agreement dated 16.12.2003 can no longer be performed.

4. In the resultant situation, the petitioner instituted Misc(J) Case No.13/2012 in Title Suit 1137/2006 under the proviso to Section 21(5) of the Specific Relief Act, 1963 (in short Act of 1963) read with Section 151 of the Code of Civil Procedure for amending the plaint. Objections were filed by the respondents in Misc(J) 13/2012 where amongst others, a ground was taken that on the date of instituting the Misc(J) 13/2012, Title Suit 1137/2006 was already closed and was not pending. For the purpose, the respondents referred to the order dated 11.11.2008 in Title Suit 1137/2006 in order to substantiate the claim that Title Suit 1137/2006 was not pending and was closed at the time Misc(J) Case No.13/2012 was given a consideration by the learned Munsiff No.4, Kamrup(M), Guwahati. By the order dated 13.03.2012, the application under the proviso to Section 21(5) of the Act of 1963 read with Section 151 of the CPC was rejected. The operative portion of the order dated 13.03.2012 providing the reason for such rejection is extracted below:-

".......... But in the instant case the suit of the plaintiff is no longer in existence and there is no case of the plaintiff at all, since the passing of the order dtd 11.11.08, hence in my considered opinion no relief to the plaintiff can be granted at this stage by allowing the plaintiff to amend his plaint by inserting the amount of compensation in lieu of specific performance of contract. In such Page No.# 4/7

circumstance, I humbly opine that, the plaintiff is not entitled to the benefit of the judgment, discussed aforesaid. Prayer of the plalintiff is accordingly rejected."

5. A reading of the reasons for rejecting the application of the petitioner under the proviso to Section 21(5) of the Act of 1963 read with Section 151 CPC would go to show that as the Title Suit 1137/2006 was no longer in existence on the date of the order passed on 11.11.2008, the amendment to the plaint sought for by the petitioner cannot be allowed.

6. Being aggrieved, this revision petition under Article 227 of the Constitution of India has been instituted. The core question for adjudication would be as to whether on the date Misc(J) Case No.13/2012 was instituted, the Title Suit 1137/2006 was pending or it was closed. Both the petitioner as well as the respondents referred to the order dated 11.11.2008 in Title Suit 1137/2006 to raise rival contentions. In other words, we required to look into the provision of the order dated 11.11.2008 in Title Suit 1136/2006 to arrive at a conclusion as to whether the Title Suit was pending or it was closed by the said order. For ready reference the order dated 11.11.2008 is extracted below:-

" Plaintiff is represented by his learned counsel. Defenants are also represented by their learned counsel . The suit is at the stage of P.Ws. Perused the record. Order sheet reveals that first date for submitting the evidence-on- affidavit of the P.W.s was fixed on 16.08.2008. Thereafter 02.09.2008, 18.09.2008 and 03.10.2008 were fixed for P.W.s. On 16.08.08, 02.09.2008 and 18.09.2008 hearing was adjourned on consideration of the prayer of the learned counsel for the plaintiff. But on 03.10.2008 the plaintiff side merely filed Hazira without submitting evidence-on-affidavit of the P.W.s nor any time was sought for filing the evidence-on-affidavit. Today also, plaintiff side evidence-on- affidavit nor time is sought for filing the evidence-on-affidavit of the P.W.s. As such evidence from the side of the plaintiff is closed. As the defendants have filed counter claim, the next date is fixed for D.W.s."

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7. A reading of the order dated 11.11.2008 in Title Suit 1137/2006 would go to show that several dates being 16.08.2008, 2.09.2008, 18.09.2008 were fixed for plaintiff evidence. On 16.08.2008, 02.09.2008, 18.09.2008 hearing was adjourned on the prayer of the petitioner plaintiff. On 03.10.2008 only 'Hazira' was filed without leading any evidence of the petitioner plaintiff. Accordingly, the following operative order was passed by the learned Munsiff No.4, Kamrup, Guwahati:-

".......Today also, plaintiff side evidence-on-affiavit nor time is sought for filing the evidence-on-affidaivt of the P.W.s. As such evidence from the side of the plaintiff is closed. As the defendants have filed counter claim, the next date is fixed for D.W.s."

8. A reading of the operative part of the order dated 11.11.2008 would go to show that the evidence from the plaintiff side was closed which cannot mean that the suit itself was closed.

9. Mr. A. Iqbal, learned counsel for the respondents raises a contention that the suit was not closed as the defendants had filed counter claim and the next date was fixed for evidence of the defendants. The contention of Mr. A. Iqbal, learned counsel for the respondents even if accepted cannot lead to a conclusion that the Title Suit 1137/2006 was closed by the order dated 11.11.2008. The reason put forward by Mr. A. Iqbal may be right, but what remains on record is that Title Suit 1137/2006 was pending and it was not closed.

10. Section 21(1) of the Act of 1963 inter alia provides that in a suit for specific performance of a contract the plaintiff may also claim compensation for its breach, either in addition to or in substitution of such performance. Again Page No.# 6/7

Section 21(5) of the Act of 1963 provides that no compensation shall be awarded under the Section unless the plaintiff has claimed such compensation in its plaint with a proviso that where the plaintiff has not claimed any such compensation in the plaint, the Court at any stage of the proceeding allow the plaintiff to amend the plaint on such terms as may be just for including a claim for such compensation. The very expression át any stage of the proceeding' in the proviso to Section 21(5) of the Act of 1963 would go to show that the amendment of the plaint can be allowed at any stage of the proceeding meaning thereby, all that is required is that the suit must be pending and it ought not to have been formally closed by any valid order.

11. As in the instant case, we have arrived at a conclusion that the order dated 11.11.2008 in Title Suit No.1137/2006 does not formally close the Title Suit 1137/2006 and merely closes the evidence on the part of the plaintiff we have to understand that Title Suit 1137/2006 was not closed on the date when the Misc(J) 13/2012 was filed. Under the proviso to Section 21(5) of the Act of 1963 read with Section 151 of the CPC, as the Title Suit was not closed on the said date, we interfere with the order of the learned Munsiff No.4, Kamrup(M), Guwahati dated 13.03.2012 and remand the matter back to the learned Munsiff No.4, Kamrup(M), Guwahati for passing a fresh order as may be required under the law.

12. The order dated 13.03.2012 of the learned Munsiff No.4, Kamrup(M), Guwahati is hereby set aside.

13. As agreed by both the parties, both the petitioner and the respondents to appear before the learned Munsiff No.4, Kamrup(M), Guwahati on 07.12.2021. As this is a matter pending for long, we request the learned Munsiff to deal with and decide the matter at the earliest without any further delay.

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Revision petition stands allowed as indicated above.

JUDGE

Comparing Assistant