Rajib Barooah vs Purnimati Plantation Pv. Ltd
2022 Latest Caselaw 4275 Gua

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GAHC010134212018




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

                               Case No. : CRP(IO)/207/2018

            RAJIB BAROOAH
            S/O. LATE RAMENDRA PRASAD BAROOAH, R/O. HAROOACHARAI TEA
            ESTATE, DIST. JORHAT.

            VERSUS

            PURNIMATI PLANTATION PV. LTD.
            RAHAN BUILDING, NEAR BIHU TALI, RAJGARH ROAD, P.S. CHANDMARI,
            GUWAHATI- 781003, AND ALSO HAS AN OFFICE AT PURNIMATI TEA
            ESTATE, TILIKIAM, JORHAT.




Advocate for the Petitioner   : MR. B J GHOSH

Advocate for the Respondent : MR. K BHATTACHARJEE

BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

JUDGMENT AND ORDER (ORAL)

Date : 04-11-2022

1. Heard B. J. Ghosh, the learned counsel appearing on behalf of the petitioner and Mr. K. Bhattacharjee, the learned counsel appearing on behalf of the respondent.

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2. This is an application under Article 227 of the Constitution of India challenging the order dated 12.04.2018 passed in Misc. (J) Case No.60/2017 arising out of Title Suit No.76/2009 whereby the application seeking amendment of the plaint was rejected by the Trial Court.

3. For the purpose of appreciating the perspective in which the impugned order was passed by the Trial Court, it would be relevant to take note of background to the application filed seeking amendment. The plaintiff had entered into a registered Deed of Lease dated 12.04.2004 with the defendant whereby in consideration to the payment to be made, the Tea Garden viz. Puranimati Tea Estate was leased out to the respondent w.e.f. 02.12.2003 for a term of 99 years. There are various terms and conditions mentioned in the said Lease Agreement. For the purpose of the instant application Clause - 2(VI) and Clause - 2(VIII) being relevant are quoted hereinbelow.

"2(VI). That the LESSEE shall not be liable for previous and/or existing liability of the LESSOR but shall be liable for all liabilities from the date of commencement of lease as mentioned herein above.

2(VIII). That the LESSEE shall comply with the requirements of the law for the time being in force regarding the factories, tea plantation Rules and Regulations and also shall comply with the provisions of labour laws in respect of tea garden etc."

4. From a perusal of the above two clauses, it is apparent that the lessee i.e. the respondent herein would not be liable for the previous and/or existing liability of the lessor but would be liable for all liabilities from the date of commencement of the lease as mentioned. In Clause - 2(VIII) it has been mentioned that the lessee i.e. the respondent shall comply with the requirements of the law for the time being in force regarding the factories, tea Page No.# 3/7

plantation Rules and Regulations and also shall comply with the provisions of labour laws in respect of tea garden etc.

5. Certain disputes and differences arose between the petitioner and the respondent herein for which a suit was filed before the Court of the Munsiff No.1, Jorhat seeking eviction, recovery of khas possession, recovery of arrear rent, compensation and permanent injunction which was registered and numbered as Title Suit No.76/09. A perusal of the said plaint would go to show that the allegations made in the plaint was that the defendant has violated the terms and conditions of the registered Deed of Lease dated 12.04.2004 for which eviction was sought for by the plaintiff along with other consequential reliefs. The defendant thereupon filed written statement denying any violation to the terms and conditions of the lease as well as also denying the case of the plaintiff. It further appears that issues have already been framed and amongst the many issues framed, one of the issues so framed was as to "Whether the defendant have violated the terms and conditions of the agreement?" Thereupon, the plaintiff have already adduced the evidence and the plaintiff witnesses have already been cross-examined.

6. In the meantime on account of various proceedings being initiated before this Court, the defendant's evidence could not be adduced till date. Be that as it may, on 14.06.2017, the plaintiff/petitioner received a notice of demand dated 13.06.2017 from the Recovery Officer, Assam Tea Employees Provident Fund Organizaton, Jorhat wherein it has been mentioned that there has been non- payment of Provident Fund Contribution, Provident Fund Administrative Charges, Deposit Linked Insurance Contribution, Deposit Linked Insurance Administrative Charges during the period when the defendant/respondent herein is running the Tea Garden on lease.

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7. On coming to learn about the said notice of demand, the plaintiff filed an application under Order VI Rule 17 to incorporate two paragraphs in the plaint i.e. paragraph No. 4A and 4B in order to show that during the pendency of the suit there has been further violation to the terms and conditions to the Lease Agreement inasmuch as Clause-2(VI) and Clause-2(VIII) have been violated. The said application so filed seeking amendment was registered and numbered as Misc. (J) Case No.60/2017. The respondent herein had filed written objection contending that the provident fund authorities are not a party to the suit and amendment sought for in paragraph Nos. 4A and 4B shall change the nature and character of the suit. Further it was also mentioned that since the trial has commenced, the petition for amendment of the plaint at this stage is not admissible.

8. The Trial Court vide the impugned order dated 12.04.2018 rejected the said application on the ground that the Court had already framed an issue as to "Whether the defendant had committed breach of any condition of the lease deed" in the suit. It was observed that the amendment sought for by the petitioner relates to violation of the terms and conditions of the lease deed. Further it was observed that the suit is at the stage of the evidence of the defendant witnesses and since an issue has already been framed regarding the violation of terms and conditions of the Lease Agreement on the basis of the materials available on record, the plaintiff/petitioner cannot be allowed to collect further evidence to substantiate that issue in his favour by way of amendment of pleading. It was also observed that the other side shall be adversely prejudiced if the said amendment would be allowed. Further to that the Court also came to a finding that the provident fund authority is not a party to the suit and the petitioner also does not have any claim against the provident fund Page No.# 5/7

authorities and as such the letter from the provident fund authority dated 13.06.2017 is not going to help in determining the real question in controversy involved in the suit. It is under such circumstances that the said application seeking amendment was rejected vide the impugned order.

9. I have heard the learned counsels for both the parties and have perused the materials on record. From a perusal of the plaint as already stated herein above it is clear that it is on account of the violation of the terms and conditions of the agreement dated 12.04.2004 that the suit was filed seeking eviction of the respondent along with other consequential reliefs. During the pendency of the suit admittedly a notice dated 13.06.2017 was issued. The said document i.e. the notice dated 13.06.2017 is a part of the instant proceedings. It is an admitted fact as would be seen from the plaint as well as from the written statement that w.e.f. 02.12.2003, the respondent has been managing the affairs of the Tea Estate in question. A perusal of the notice dated 13.06.2017 issued by the provident fund authority reflects that there has been arrears in payment of Provident Fund Contribution, Provident Fund Administrative Charges, Deposit Linked Insurance Contribution, Deposit Linked Insurance Administrative Charges during the time when the defendant/respondent has been running the affairs of the Tea Estate. This aspect of the matter touches on the real question in controversy between the parties. But surprisingly, the Court below have held that the said aspect of the matter does not touch on the real question in controversy between the parties on the ground that the provident fund authority has not been made a party and the plaintiff has sought for no reliefs against the provident fund authority. This Court would like to observe that whether the plaintiff has any grievances as regards the notice of demand insofar as the provident fund authority is a separate aspect of the matter. But taking into Page No.# 6/7

consideration that the issues so framed as to whether the defendant has violated the terms and conditions of the agreement, the alleged non-payment of the dues in the notice of demand dated 13.06.2017 in the opinion of this Court touches on the real question in controversy to be adjudicated by the Trial Court.

10. The next question which also needs to be addressed is as to whether there has been diligence on the part of the plaintiff to file the application seeking amendment of the plaint at the stage when the trial has already begun. Taking into consideration that the notice of demand dated 13.06.2017 was issued pursuant to the trial having already commenced and immediately on receipt of the said notice the petitioner/plaintiff had filed the application under Order VI Rule 17 of the Code, this Court is of the opinion that the proviso to Order VI Rule 17 shall not bar in filing of the application seeking amendment of the plaint.

11. Having observed so, this Court is of the opinion that the impugned order dated 12.04.2018 suffers from jurisdictional error and consequently the same stands interfered with and set aside. This Court allows the amendment as sought for in Misc. (J) Case No.60/2017 and directs the plaintiff to file the amended plaint before the Court below on 21.11.2022 without fail else it is observed that the consequences under Order VI Rule 18 shall apply.

12. It is further observed that this Court vide an order dated 22.06.2018 had stayed the further proceedings of Title Suit No.76/2009 pending before the Court of the Munsiff No.1, Jorhat which stands vacated in view of the order passed herein and the parties are directed to appear before the Trial Court on 21.11.2022. The Trial Court thereupon proceed with the adjudication of the suit in accordance with law.

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13. With above observations and directions, the instant petition stands disposed of.

JUDGE

Comparing Assistant