Sri Subash Debnath vs Sri Shyamal Sarkar
2022 Latest Caselaw 801 Tri

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                      HIGH COURT OF TRIPURA
                            AGARTALA
                        CRP NO.32 OF 2022

Sri Subash Debnath,
S/o. Lt. Gouranga Debnath,
Resident of Vill-Icharbill,
P.S.- Teliamura, Khowai, Tripura.
                                                 .....Petitioner(s)
                                Versus
1. Sri Shyamal Sarkar,

2. Sri Sital Sarkar,
Both 1 & 2 are S/o Lt. Nepal Sarkar,

3. Smt. Anjali Rani Das,
W/o Lt. Dhirandra Das,
All are residents of South Pulinpur, P.S.- Teliamura, District
Khowai, Tripura
                                      ........Respondent(s)

For the Petitioner(s) : Mr. B.N. Majumder, Sr. Advocate.

Mr. B. Paul, Advocate.

Mr. S.C. Sen, Advocate.

For the Respondent(s) : Mr. N. Chowdhury, Advocate.

Ms. R. Majumder, Advocate.

Date of hearing                : 23.08.2022.

Date of delivery of
Judgment & Order               : 26.08.2022

Whether fit for reporting      : YES

      HON'BLE MR. JUSTICE T. AMARNATH GOUD
                  JUDGMENT & ORDER

This instant revision petition has been filed under

Article 227 of the Constitution of India, for

quashing/canceling/setting aside the order dated

06.04.2022 in Civil Misc, Case No.09 of 2021 in T.S.157 of

2016 passed by learned Civil Judge, Senior Division,

Khowai, Tripura.

2. The fact of the case in brief is that, the petitioner

being the plaintiff filed the T.S. Suit No.157 of 2016 against

the respondents for confirmation of title over the suit land,

described in the plaint and inter alia for recovery of the

khash possession of the suit land by evicting the defendants

and his agents. The respondents herein being the

defendants in the suit had appeared and joined the trial of

the case and filed their written statement.

3. At that stage, it was noticed by the plaintiff-

petitioner that the plaint contains certain typographical

mistakes in terms of numerical figures i.e., in Para-9, 11 &

12 of the plaint a date (all are of same) has been printed

out wrongly. It has been typed as '30.09.2014‟ though it

would be '30.12.2015‟. Similarly in the same way, due to

typographical mistake/error and/or oversight in the

schedule of the suit land, in page-7 of the plaint, in 1st line,

'10' Gandas has been typed, thought it would be „5'

Gandas. As such the petitioner applied for amendment of

the plaint on 24.02.2021. The said application for

amendment of the plaint was registered as Misc No.09 of

2021. The defendant-respondents submitted their written

objection resisting the prayer of the petitioner for

amendment of the plaint.

4. The aforesaid application for amendment of the

plaint was heard by the learned Trial Judge and ultimately

by an order dated 06.04.2022, the learned Trial Judge

rejected the said prayer for amendment solely on the

ground that there was delay in filing the application.

5. Being aggrieved and dissatisfied by the said order

dated 06.04.2022 passed in Misc. Case No.09 of 2021

passed by the learned Civil Judge, Senior Division, Khowai,

this instant revision petition has been filed seeking the

following reliefs:-

" i) Admit this revision petition;

ii) Issue a Rule calling upon the respondents to show cause as to why the impugned order dated 06.04.2022 passed by the ld. Court of Civil Judge, Senior Division, Khowai, in connection with the Case No. Civil

Misc.09/2021 in connection with T.S. 157 of 2016, shall not be quashed/set aside, for the fair ends of justice.

iii) Call for the records pertaining to the Case No. Civil Misc.09/2021 in connection with T.S.157 of 2016 pending before the ld. Court of Civil Judge, Senior Division, Khowai, Tripura;

iv) In the ad-interim pass an order staying the further proceeding of Title Suit Case No.157 of 2016, pending before the Ld. Court of Civil Judge, Senior Division, Khowai, Tripura, till disposal of the instant revision petition, for the fair ends of justice.

v) After hearing the parties may please to quash, set aside the impugned order dated 06.04.2022 passed byt the learned Court of Civil Judge, Senior Division, Khowai, Tripura in connection with the Case No. Civil Misc.09/2021 in connection with T.S.157 of 2016, for the fair ends of justice.

vi) After hearing the parties may please to make the Rule absolute in terms of prayer No.(i) &(iv), cited above;

vi) Pass any other or order or orders granting relief(s) in favour of your humble petitioner as to this Hon‟ble Court may deem fit and proper."

6. Heard Mr. B.N. Majumder, learned Sr. counsel

assisted by Mr. B. Paul, learned counsel appearing for the

petitioner as well as Mr. N. Chowdhury, learned counsel

appearing for respondents No.1 & 2, and Ms. R. Majumder,

learned counsel appearing for respondent No.3.

7. Mr. B.N. Majumder, learned counsel appearing for

the petitioner submitted that the amendment petition

preferred in the Court below was not for the insertion of

new facts or evidence which would surprise the defendant

rather, it was only for the correction of some numerical

figures i.e., in Para-9, 11 & 12 of the plaint a date (all are

of same) has been printed out wrongly. It has been typed

as '30.09.2014‟ though it would be '30.12.2015‟. Similarly

in the same way, due to typographical mistake/error and/or

oversight in the schedule of the suit land, in page-7 of the

plaint, in 1st line, '10' Gandas has been typed, thought it

would be „5' Gandas. Such mistake contained in the plaint

occurred due to typographical mistake and nothing more

than that. The petitioner was not trying to incorporate some

new facts. The petitioner had prayed for correction of one

particular date i.e. 30.12.2015 in place of 30.09.2014 as

occurred in paragraph-9, paragraph-11, and paragraph-12.

This is the date on which according to the plaintiff the

defendants have illegally entered into the suit/scheduled

land and cause of action for institution of the suit. But due

to typographical mistake in the above-mentioned

paragraph, the dates were mentioned as 30.09.2014. The

learned Trial Court failed to appreciate that in paragraph 8,

the plaintiff had categorically stated that on 30.12.2015 at

about 09.00 P.M. the respondents had entered into the suit

land. Therefore this date was never a new date, rather it

was a mere typographical mistake.

8. Mr. B.N. Majumder, learned Sr. counsel further

submitted that the other amendment sought by the plaintiff

is in respect of a numerical figure contained in the schedule

of the plaint. The suit land is measuring „5‟ Gandas of land

as is evident from paragraph 4 of the plaint but due to

typographical error, it was typed out as „10‟ Gandas.

Further, it is stated that the plaintiff had already exhibited

the purchase deed dated 30.09.2014 marked as Exbt-1 in

support of the contention of the petitioner that it was a

typographical mistake. Learned Sr. counsel further

submitted that the learned Trial Court failed to appreciate

the letter and spirit of Order 6 Rule 17 of CPC.

In support of his argument, Mr. B.N. Majumder,

learned Sr. counsel pressed into service para-15 and 16 of

the Apex Court Judgment passed in Punjab National Bank

and Indian Bank and anr., reported in (2003) 6 SCC 79

dated 22.04.2003 which are reproduced herein-under:-

"15. It can, however, be said that there is some vagueness in the plaintiff's case regarding the claim and decree in terms of dollar or rupee but there can always be an amendment of the pleading to clear such confusions and vagueness. In, Laxmidas Dahyabhai Kabarwala v. Nanabhai Chunilal Kabarwala and Ors., it has been held that amendment can be refused when the effect of it would be to take away from a party a legal right which had accrued to him by lapse of time. It may be so when fresh allegations are added or fresh reliefs are sought by way of amendment. But where the amendment merely clarifies an existing pleading and does not in substance add to or alter it, there is no good reason not to allow the same nor even the bar of limitation would come in the way. No fresh allegations of facts have been introduced/or added nor any fresh cause of action or new relief is sought to be added. A matter already contained in the original pleading can always be clarified and such an amendment should ordinarily be allowed and in such a case the question of bar of limitation would not be attracted. The case in hand is not one in which something fresh or new is sought to be added. The claim in terms of dollars has been made in different paragraphs of the plaint as well as in Clause (v) of the prayer clause, no new relief is sought to be added, only rupee equivalent of the dollar, is sought to be deleted and a clear prayer for decree in dollars would, resultantly remain there, by deletion of rupee component equivalent to the dollars. In our view, no question of introducing any new case, a new cause of action or seeking new relief which may be barred by limitation arises. It is an amendment more clarificatory in nature.

16. We would also like to observe that delay in moving the application would also not be material since proceedings are still not at the trial stage. The defendant is in now way taken by surprise by allowing the amendment. Such an averment is already there in the plaint at places more than one as well as in the relief clause. The defendant would not be called upon to answer any new case nor would be caught by surprise."

9. Mr. N. Chowdhury, learned counsel appearing for

respondents No.1 & 2 countering the said argument of

learned Sr. counsel submitted that plaintiff-petitioner

violated the provisions of law. For example, during the

stage of evidence and filing of examination in chief under

Order XVIII Rule 4, the plaintiff has taken 10(ten)

adjournments in between 15.08.2018 to 01.05.2019 in

spite of the fact that the plaintiff is not entitled to get

adjournment more than three times. In the proceeding

before the Court below, the evidence of both sides was

closed on 21.12.2019. The plaintiff at this stage has also

taken three adjournments i.e. on 02.08.2019, 28.08.2019,

and 21.12.2019. Thereafter on 28.02.2020 it was fixed for

argument but the plaintiff took adjournment on 9(nine)

occasions excluding the date of the Covid-19 pandemic

situation period. The plaintiff-petitioner is taking advantage

to drag the case which is beyond the sanction of law. Mr.

Chowdhury, learned counsel argued that if the amendment

petition is allowed at this belated stage i.e. after completion

of trial and after giving so many opportunities, the present

defendant will suffer irreparable loss. Learned counsel

further submitted that in respect of recovery of possession,

the date of cause of action and quantum of land is a

substantial question of fact that cannot be changed and if it

is done, the nature and character of the suit will change.

In support of his argument, learned counsel

pressed into service para-27 of the Apex Court Judgement

reported in AIR 2005 SC 3353 titled as Salem Advocate

Bar Association, Tamil Nadu Vs. Union of India dated

02.08.2005 which is reproduced herein-under:-

"Order VI Rule 17 Order VI Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.

10. Also heard Mrs. R. Majumder, learned counsel

appearing for respondent No.3. She adopted and supported

the arguments of the learned counsel appearing for

respondents No.1 & 2.

11. Heard both sides and perused the evidence on

record.

12. For determining the prayer for amendment, let us

at first, go through the provision under Order VI, Rule 17 of

CPC which is reproduced as under:-

"Amendment of pleadings. The Court at any stage of the proceedings allow either party to alter or amend his pleadings is such manner and on such terms as may be just, and all such amendment 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."

13. The extract of lines/sentences from paragraph

No.9, 11 and 12 of plaint seeking change of dates are as

follows:-

" 9.............. written complaint to the O.C. Teliamura P.S. on 02.01.2016, regarding the incident of 30.09.2014, involving the ........

11......... illegal possessing the suit land since 30.09.2014. The Defendants..........

12.......... cause of action for filling the instant suit firstly arose on 30.09.2014 and thereafter.........."

In the above extracted lines/sentences, the

plaintiff-petitioner has prayed for the following

amendments:-

" 9.............. written complaint to the O.C. Teliamura P.S. on 02.01.2016, regarding the incident of 30.12.2015, involving the ........

11......... illegal possessing the suit land since 30.12.2015. The Defendants..........

12.......... cause of action for filling the instant suit firstly arose on 30.12.2015 and thereafter.........."

14. The extract of schedule of property (extent of

land), in page-7 of the plaint, in 1st line seeking change is

as follows:-

" SCHEDULE OF SUIT LAND

Land measuring 10 Gandas recorded under present Khatian No. 1939/1.........."

In the above extracted schedule of property, the

plaintiff-petitioner has prayed for the following changes:-

"" SCHEDULE OF SUIT LAND Land measuring 5 Gandas recorded under present Khatian No. 1939/1.........."

15. Admittedly, the case before the Court below has

undergone several adjournments. For so many years, the

petitioner-plaintiff herein had many opportunities and also

had knowledge with regard to the facts stated in the

pleadings and nothing prevented the petitioner from taking

steps. After completing the trial and after closing of the

evidence, at the stage of arguments, the petitioner has

approached this Court seeking an amendment.

16. Learned Sr. counsel appearing for the petitioner

has advanced his argument that in his pleadings, in some

places, the date is indicated as 30.09.2015 and in some

places, the date is indicated as 30.12.2015. Because of the

two conflicting dates, there can be confusion in the Court

below for passing an order and a uniform date needs to be

maintained as per the amendment petition which would not

create any hardship and will not cause any prejudice.

17. This argument of the learned Sr. counsel cannot

be appreciated at this stage after the closing of the trial

before the Court below. It is needless to observe that based

on the evidence adduced before the Court below and the

document presented which are marked as exhibits, the

Court below would necessarily apply its mind and pass a

reasoned judicious order.

18. Further one of the important factors which the

Court has to consider in dealing with an application for

amendment is delay and lapse of time on the part of the

petitioner/applicant in seeking an amendment of his

pleading. It has been time and again reiterated by Hon'ble

Apex Court in a catena of decisions that if there is gross

delay and laches on the part of the applicant in applying the

amendment and permitting such amendment, it is likely to

cause serious prejudice to his adversary which cannot be

compensated in terms of cost, the Court may refuse to the

amendment.

19. In the instant case, the plaintiff-petitioner has filed

the petition for amendment at the stage of argument, i.e.

after closing up of all stages of the Trial. Also, perusing the

evidence on record, nothing is found to fortify that despite

exercising due diligence, the plaintiff-petitioner could not

have raised this matter before the commencement of trial.

20. Further, in view of the discussion made above and

the fact of the present case, the decision as cited by the

learned Sr. counsel appearing for the petitioner is not

relevant to the fact of the present case. In so far as the

judgment referred by the respondent-counsel is concerned,

though it indicates that the amendment petition at the

latter stage is not permissible, but, in view of the law laid

down there in the above judgment and the facts therein, it

is also not relevant to the facts of this case. By amending

the dates in pleadings and extent of land in schedule of

property at this juncture would change the nature of the

suit and cause of action. All the above facts were very much

available in hand and were within the knowledge of the

plaintiff-petitioner. But he has not acted with due diligence.

Thus not entitled for any indulgence of this Court. The order

passed by the Court below needs no interference.

21. Hence, in the light of the above discussion and in

my considered view, I do not find any ground to allow this

instant revision petition, and the same is dismissed.

Consequently, pending application(s), if any, also stand

closed.

JUDGE

suhanjit