Md. Abdul Rahim vs (1) Muslem Miah Son Of Late Jahar ...
2023 Latest Caselaw 24 Tri

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                     HIGH COURT OF TRIPURA
                       _A_G_A_R_T_A_L_A_
                              CRP No.91 of 2022
Md. Abdul Rahim, son of late Titab Ali, resident of Hirapur, Maharani,
P.O. Maharani, P.S. R.K. Pur, District- Gomati Tripura.

                                                 .....Plaintiff-Petitioner(s)
                                VERSUS

(1) Muslem Miah son of late Jahar Ali
(2) Danich Ahammad, son of Mahuj Uddin.
Both are resident of Hirapur, Maharani (near Cooperative Dighi), P.O.
Maharani, P.S. R.K. Pur, District- Gomati Tripura.

                                              .....Defendant-Respondent(s)

For Petitioner(s)         :      Mr. Raju Datta, Advocate.
For Respondent(s)         :      Mr. Sankar Lodh, Advocate,
                                 Mr. Samar Das, Advocate.

            HON'BLE THE CHIEF JUSTICE (ACTING)
                         JUDGMENT & ORDER
               Date of hearing & judgment : 6th January, 2023

Heard Mr. Raju Datta, learned counsel appearing for the

petitioner and also heard Mr. Sankar Lodh, learned counsel appearing for

the respondents.

[2] The present petition has been filed by the petitioner under

Section 115 of CPC for quashing the order dated 14.09.2022 passed by

the learned Civil Judge, Junior Division, Court No.3, Udaipur, Gomati

District in Case No. Civil Misc. 06 of 2022 arising out of Title Suit No.13

of 2020 whereby the application filed by the petitioner was rejected.

[3] Brief facts are as under :

The petitioner on 18.04.2022 filed an application before the

learned trial Court and prayed for amendment of the plaint of TS 13 of

2022 as per schedule mentioned thereto since at the time of filing the

plaint, the petitioner failed to mention some facts which were not

incorporated in the plaint. The defendant-respondent No.1 submitted

written objection against the said application and after hearing the learned

counsel for the parties, the trial Court by an order dated 14.09.2022

rejected the application filed by the petitioner for amendment of the plaint

on the ground that allowing the amendment of plaint would change the

original nature of the suit and will prejudice the defendant respondent.

[4] The plaintiff-petitioner initially filed Title Suit No.13 of

2020 before the learned Civil Judge, Junior Division, Gomati Tripura,

Udaipur for declaration of right title, interest & recovery of the

possession over the suit land and conforming recovery of possession over

the suit land in favour of the plaintiff, for passing an order restraining the

defendants from interfering with the peaceful possession of the plaintiffs

over the suit land and also prayed for passing a decree to deliver vacant

possession of the suit land to the plaintiff after evicting the defendants.

[5] The respondent side also filed written statement alleging that

the suit of the plaintiff-petitioner is not maintainable as the same is barred

by law of limitation and same is liable to be rejected. In his written

statement, he further alleged that the petitioner has no legal right and

locus standi to file the instant suit against the answering defendants. In

paragraphs 11 of the written statement, he contended that the plaintiff

filed the suit for declaration of right, title interest and recovery of

possession but in paragraph No.5, the plaintiff stated that he is entitled to

a decree declaring his right, title and interest over the suit land and

confirmation of possession, so it is admitted fact that the plaintiff is in

possession of suit land and as such the suit is liable to be dismissed.

[6] The learned Civil Judge vide order dated 14.09.2022 after

hearing the learned counsel for the respective parties and after perusing

amendment of plaint, dismissed the petition filed by the plaintiff inter

alia contending that by allowing the new facts would change the original

nature of the suit which would prejudice the opposite party and would

only detriment the very purpose of dragging the case. The operative

portion of the order is reproduced hereunder :

"After perusing the contents of schedule of proposed amendment of above mentioned application which they want to add in original plaint, it has observed that at this stage allowing these new facts will change the original nature of the suit and which will prejudice the opposite party and which only detriment the very purpose of justice by dragging the case. By such introducing new fact, plaintiff trying to delude the attention of the Court from

the original fact of the case. Hence, the present prayer for the amendment of the plaint by the plaintiff side is rejected."

[7] Being aggrieved by the order of the trial Court, the petitioner

filed this petition seeking the following relief :

"(i) It is, therefore, most humbly prayed that Your Lordships would graciously be pleased to issue Rule upon the respondents to show cause as to why the impugned order dated 14.09.2022 passed by the learned Civil Judge, Junior Division, Court No.3, Udaipur, Gomati District in Case No. Civil Misc 06 of 2022 arising out of T.S 13 of 2020 should not be quashed and/or set aside and as to why the application dated 14.08.2022 filed by the plaintiff-petitioner under Order VI Rule 17 for amendment of the plaint of TS 13 of 2020 should not be allowed.

(ii) To pass such other order/orders so as to give full relief to the petitioner;

(iii) Pending disposal of this petition be pleased to pass an interim order staying further proceeding of case No. Title Suit No.13 of 2020 pending in the Court of learned Civil Judge, Junior Division, Court No.3, Udaipur, Gomati District till disposal of this petition."

[8] Mr. Raju Datta, learned counsel appearing for the petitioner

contends that the impugned order is per se, perverse as it suffers from non

application of mind. He further submits that the learned trial Court did not

consider some very important facts which were not incorporated in the

plaint as the plaintiff-petitioner was fully dependent on his engaged

counsel. Counsel further stated that due to inadvertence of the engaged

counsel, the plaintiff-petitioner should not be suffer irreparable loss.

Subsequently, he prays for setting aside the order dated 14.09.2022

passed by the learned Civil Judge, Junior Division, Court No.3, Udaipur,

Gomati District.

[9] On the other hand, Mr. Sankar Lodh, learned counsel

appearing for the respondent No.1 vehemently opposed the petition

contending that in the plaint, the particulars of suit land is specifically

mentioned by the plaintiff in the Schedule of Suit land but by proposed

amendment the plaintiff is trying to change the quantum of suit land and

also the plaintiff is trying to add a new cause of action though the same is

specifically mentioned in the plaint and prays for dismissal of the same.

[10] This Court is of the considered view that the present petition

needs to be converted into Article 227 of the Constitution of India in the

light of the judgment of the Apex Court. Accordingly, the present Civil

Revision Petition filed under Section 115 of CPC is converted into Article

227 of Constitution of India in light of the judgment of the Apex Court in

case of Raj Shri Agarwal @ Ram Shri Agarwal and another versus

Sudheer Mohan and others, reported in 2022 LiveLaw (SC) 864.

[11] The only relief sought by the petitioner is with regard to the

amendment petition and the court below has rejected the same. In the

amendment petition the words appearing "recently" to be substituted "i.e.

on 08.08.2020" and after four line from the top of paragraph No.2 after

the word "suit land" following sentence be also substituted "i.e. land

measuring 0.06 acres i.e. 3 gandas of land under khatian No.220 of

Mouja-Hirapur, Sabek Dag No.PB 9353, RS Plot No.701."

[12] During the course of argument, Mr. Raju Datta, learned

counsel appearing for the petitioner sought relief from this Court for filing

fresh suit by withdrawing the same under Order XXXIII of CPC. Mr.

Sankar Lodh, learned counsel appearing for the respondent has made

preliminary objection to the merits of the case.

[13] After hearing learned counsel for the respective parties, this

Court feels it appropriate that ultimate justice in the matter where property,

rights of a citizen is involved, a reasonable opportunity needs to be given to

both the parties. Accordingly, permission is granted. The present civil

revision petition is disposed of giving liberty to the petitioner to file his

application before the court below under Order XXXIII of CPC seeking to

withdraw and file a fresh suit as per the process contemplated under Civil

Procedure Code. In the event of such filing, the respondents are at liberty to

raise all objections and considering the submissions of both sides, the court

below shall pass a reasoned order, in accordance with law.

[14] Petition is disposed of with the aforesaid terms. Pending

application(s), if any, also stands disposed of.

CHIEF JUSTICE (ACTING)

Dipesh