Tripura High Court
Smt. Putul Rani Debbarma vs Sri Biplab Debnath on 5 February, 2025
Page 1 of 8
HIGH COURT OF TRIPURA
AGARTALA
CRP No.98/2024
Smt. Putul Rani Debbarma, aged about 62 years, wife of Late Tarun Debbarma,
resident of Town Sankarpalli, Amarpur, P.S.-Birganj, District-Gomati, Tripura,
PIN-799101.
......... Plaintiff-Petitioner(s).
VERSUS
1. Sri Biplab Debnath, Son of Sri Jiban Debnath, resident of Tepania, Udaipur,
P.O.-R.K. Pur, P.S.-R.K. Pur, District-Gomati, Tripura, PIN-799120.
2. Sri Bijoy Debnath, son of Sri Jiban Debnath, resident of Tepania, Udaipur,
P.O.-R.K. Pur, P.S.-R.K. Pur, District-Gomati, Tripura, PIN-799120.
3. Sri Prabir Kumar Nandi, son of Sri Dhirendra Chandra Nandi, resident of
Barabhaiya, Bagma, P.O.-Bagma, P.S.-R.K. Pur, District-Gomati, Tripura,
PIN-799179.
4. Sri Bipad Debnath, son of Sri Kanailal Debnath, resident of Kupilong,
Udaipur, P.O.-Kupilong, P.S.-Killa, District-Gomati, Tripura, PIN-799114.
.........Defendant-Respondent(s).
For Petitioner(s) : Mr. Abhijit Sengupta, Advocate.
For Respondent(s) : Mr. Tapash Datta Majumder, Sr. Advocate,
Mr. Dalit Kalai, Advocate,
Mr. Tapash Halam, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
05/02/2025
Heard Mr. Abhijit Sengupta, learned counsel appearing for the
plaintiff-petitioner and Mr. Tapash Datta Majumder, learned senior counsel
assisted by Mr. Dalit Kalai, learned counsel appearing for the defendant-
respondents.
2. Title Suit No.5/2022 has been instituted by the petitioner-plaintiff
for declaration that she is the owner of brick-kiln, chimney and reactor running
in the name and style of 'M/s Tripureswari Bricks Company' Amarpur being
inherited from her deceased daughter, Rupali Debbarma. She also sought
mandatory injunction against the defendant-respondents, their men, agents and
labourers not to use the said brick-kiln, chimney and reactor. She has also
prayed for realization of an amount of Rs.1,26,000/- as remuneration payable
to the plaintiff-petitioner by the defendant-respondents as per Clause 10 of the
Partnership Agreement.
3. An application under Order VI Rule 17 of the Code of Civil
Procedure (CPC, for short) was preferred (Annexure-3) seeking amendment in
the plaint and in the prayer portion for a direction upon the defendant-
respondents to pay Rs.94,48,949/- as compensation for illegal demolition of
brick kiln, chimney and reactor of M/s Tripureshwari Bricks Company,
Amarpur along with interest on the assertion that during pendency of the suit
the defendants had illegally demolished and dismantled the same from the
month of September, 2022 and had constructed new brick kiln, chimney on the
same land which was completed in December, 2023. By the impugned order
dated 30.08.2024, the learned trial Court has refused to allow the amendment
application with an observation that the prayer of the petitioner involves
incorporation of prayer for grant of damages as compensation replacing the
prayer made under Sections 38 & 39 of the Specific Relief Act and, as such, it
will change the nature and character of the suit from a declaratory suit to a
Money Suit which cannot be permitted within the ambit of law.
4. Mr. A. Sengupta, learned counsel for the petitioner, has referred to
provisions of Order II Rule 2 of CPC, Section 34 of the Specific Relief Act and
also certain decisions of the Apex Court in the case of Rajesh Kumar
Aggarwal and others Versus K.K. Modi and others reported in (2006) 4 SCC
385 and in the case of Andhra Bank Versus ABN Amro Bank N.V. & Others
reported in 2007 AIR SCW 4466. He submits that such amendment does not
change the nature and character of the suit and would only enable the Court to
decide the real controversy between the parties. Therefore, the impugned order
requires interference.
5. Learned counsel for the petitioner submits that the proposed
amendment is required for the reason that because of subsequent events the
relief as claimed originally may not be available to be granted and further the
proposed amendments refer to such subsequent events or changed
circumstances that would not only shorten litigation and avoid multiplicity of
litigation but also enable complete justice to be done between the parties. There
has been no delay in seeking such amendment since the demolition of the brick
kiln, chimney and reactor of M/S. Tripureswari Bricks Company took place in
the month of September, 2022 after institution of the suit. It is, therefore,
submitted that the impugned order may be set aside and the proposed
amendment may be allowed.
6. Mr. Tapash Datta Majumder, learned senior counsel for the
defendant-respondents, has opposed the prayer on the ground that the proposed
amendment is going to fundamentally change the nature and character of the
suit. He has drawn the attention of this Court to the averments made in the
plaint and the reliefs prayed for. It is submitted that the plaintiff who is the
mother of Rupali Debbarma herself asserted at paragraph-3 of the plaint that it
is the daughter of the plaintiff and 8(eight) number of persons, who are the
successors of the partners of her daughter, had erected the brick kiln, chimney
and installed the reactor for manufacturing of bricks for commercial purpose.
Plaintiff had only sought for a decree that she is the owner of the brick kiln,
chimney and reactor running in the name of M/S. Tripureswari Bricks
Company being inherited from her deceased daughter Rupali Debbarma. She
had made further prayer for mandatory injunction against the defendants that
they should not use the brick kiln, chimney and reactor from the date of the
order. She had only sought realization of the remuneration payable to the
plaintiff as per Clause 10 of the Partnership Agreement.
7. Learned senior counsel for the defendant-respondents has drawn
the attention of the Court to the application under Order VI Rule 17 of the CPC
and submitted that by the proposed amendment, the plaintiff has now sought
compensation to the tune of Rs.94,48,949/- for alleged illegal demolition of the
brick kiln, chimney and reactor of the company alleging that the same has been
demolished and in its place new brick kiln and chimney are being completed by
the defendants in the month of December, 2023. The valuation of the suit has
correspondingly been sought to be changed. Further, the plaintiff has proposed
certain averments which introduce the cost allegedly incurred by her daughter
to the tune of Rs.98,48,949/- in construction of the brick kiln, chimney and
reactor. It is submitted that it not only changes the nature and character of the
suit but brings in a new cause of action not originally agitated. The defendants
would be gravely prejudiced and taken by surprise. If this amendment is
allowed, it cannot be compensated by adequate money. Therefore, the proposed
amendments may be refused. He has relied upon a decision of the Apex Court
in the case of Revajeetu Builders and Developers vrs. Narayanaswamy and
sons and others reported in (2009) 10 SCC 84 (paragraph-63) in support
thereof.
8. On consideration of the rival submissions of the parties, the
materials referred to hereinabove and placed from record and after going
through the impugned order, this Court is of the opinion that the amendments
which have been proposed are in relation to events which have taken place
after institution of the suit and relate to the same subject matter, i.e. the brick
kiln, chimney and reactor. One course for the plaintiff could have been to
prefer a fresh suit seeking damages or compensation for the alleged demolition
of the brick kiln, chimney and reactor over which she claims title and
mandatory injunction but if it is permissible for the plaintiff to file an
independent suit why such relief could not be prayed for to be incorporated in
the pending suit since the real controversy test is the basic of cardinal test and it
is the primary duty of the Court to decide whether such an amendment is
necessary to decide the real dispute between the parties. The decision rendered
by the Apex Court in the case of Om Prakash Gupta vrs. Ranbir B. Goyal
reported in (2002) 2 SCC 256 relied upon by the petitioner lends support to this
view. Paragraphs-11 and 12 thereof are usefully extracted hereunder:
"11. The ordinary rule of civil law is that the rights of the parties
stand crystallised on the date of the institution of the suit and, therefore, the
decree in a suit should accord with the rights of the parties as they stood at the
commencement of the lis. However, the Court has power to take note of
subsequent events and mould the relief accordingly subject to the following
conditions being satisfied: (i) that the relief, as claimed originally has, by
reason of subsequent events, become inappropriate or cannot be granted; (ii)
that taking note of such subsequent event or changed circumstances would
shorten litigation and enable complete justice being done to the parties; and
(iii) that such subsequent event is brought to the notice of the court promptly
and in accordance with the rules of procedural law so that the opposite party
is not taken by surprise. In Pasupuleti Venkateswarlu v. Motor & General
Traders [(1975) 1 SCC 770 : AIR 1975 SC 1409] this Court held that a fact
arising after the lis, coming to the notice of the court and having a
fundamental impact on the right to relief or the manner of moulding it and
brought diligently to the notice of the court cannot be blinked at. The court
may in such cases bend the rules of procedure if no specific provision of law
or rule of fair play is violated for it would promote substantial justice
provided that there is absence of other disentitling factors or just
circumstances. The Court speaking through Krishna Iyer, J. affirmed the
proposition that the court can, so long as the litigation pends, take note of
updated facts to promote substantial justice. However, the Court cautioned:
(i) the event should be one as would stultify or render inept the decretal
remedy, (ii) rules of procedure may be bent if no specific provision or fair
play is violated and there is no other special circumstance repelling resort to
that course in law or justice, (iii) such cognizance of subsequent events and
developments should be cautious, and (iv) the rules of fairness to both sides
should be scrupulously obeyed.
12. Such subsequent event may be one purely of law or founded
on facts. In the former case, the court may take judicial notice of the event
and before acting thereon put the parties on notice of how the change in law is
going to affect the rights and obligations of the parties and modify or mould
the course of litigation or the relief so as to bring it in conformity with the
law. In the latter case, the party relying on the subsequent event, which
consists of facts not beyond pale of controversy either as to their existence or
in their impact, is expected to have resort to amendment of pleadings under
Order 6 Rule 17 CPC. Such subsequent event, the Court may permit being
introduced into the pleadings by way of amendment as it would be necessary
to do so for the purpose of determining real questions in controversy between
the parties. In Trojan & Co. v. RM. N.N. Nagappa Chettiar [(1953) 1 SCC
456 : AIR 1953 SC 235] this Court has held that the decision of a case cannot
be based on grounds outside the pleadings of the parties and it is the case
pleaded that has to be found; without the amendment of the pleadings the
Court would not be entitled to modify or alter the relief. In Sri Mahant
Govind Rao v. Sita Ram Kesho [(1898) 25 IA 195 (PC)] Their Lordships
observed that, as a rule, relief not founded on the pleadings should not be
granted."
9. As held above, the Court has the power to take note of subsequent
events and mould the relief subject to the following conditions being satisfied:
(i) that the relief, as claimed originally has, by reason of subsequent events,
become inappropriate or cannot be granted; (ii) that taking note of such
subsequent event or changed circumstances would shorten litigation and enable
complete justice being done to the parties, and (iii) that such subsequent event
is brought to the notice of the Court promptly and in accordance with the rules
of procedural law so that the opposite party is not taken by surprise.
10. Similar view has been rendered in a later judgment of the Apex
Court in the case of State of Madhya Pradesh vrs. Union of India and
another reported in (2011) 12 SCC 268 wherein the judgment relied upon by
the learned senior counsel for the defendant-respondents in the case of
Revajeetu Builders and Developers (supra) has also been referred to at
paragraphs-7 to 12 of the report. Following the observation made in Revajeetu
Builders and Developers (supra) at paragraph-63 of the report it is evident that
the proposed amendments in the present case appear to be imperative for
proper and effective adjudication of the case and in fact, it would avoid
multiplicity of litigation. The application for amendment cannot be said to be
mala fide since it has been made in relation of an alleged event which has
occurred after institution of the suit and promptly so.
11. It has also been brought to the notice of this Court by learned
counsel for the petitioner that the prayer for injunction was refused by the
learned trial Court. During pendency of the appeal against it, such alleged act
of demolition had taken place which the plaintiff sought to incorporate by way
of the proposed amendment. Moreover, it is also well-settled that while dealing
with the prayer for such amendment, the learned Court ought not to observe on
the merits of the case. If the amendments are allowed, defendants get a chance
to file additional written statement to controvert and contest such averments
and prayer. However, if the proposed amendment is not allowed to incorporate
the subsequent events, the original relief prayed for in the suit may become
inappropriate or cannot be granted.
12. Section 40 of the Specific Relief Act, 1963 reads as under:
"40. Damages in lieu of, or in addition to, injunction.-(1) The plaintiff in a
suit for perpetual injunction under Section 38, or mandatory injunction under
Section 39, may claim damages either in addition to, or in substitution for,
such injunction and the court may, if it thinks fit, award such damages.
(2) No relief for damages shall be granted under this section unless the
plaintiff has claimed such relief in his plaint:
Provided that where no such damages have been claimed in the plaint, the
court shall, at any stage of the proceeding, allow the plaintiff to amend the
plaint on such terms as may be just for including such claim.
(3) The dismissal of a suit to prevent the breach of an obligation existing in
favour of the plaintiff shall bar his right to sue for damages for such breach."
The proposed amendments are, therefore, also in consonance with
the provisions of the Specific Relief Act and can be allowed to be incorporated
at any such stage of the proceedings on such terms as the Court may deem just.
13. Taking a holistic view of the aforesaid facts and circumstances
and the proposition of law as laid down by the Apex Court to the issue at hand,
this Court is of the opinion that the proposed amendment should be allowed to
enable the learned trial Court to render complete justice between the parties
and also to avoid multiplicity of litigation since it relates to subsequent events
which have occurred in respect of the subject matter of the suit during its
pendency.
14. As such, the revision petition is allowed. The impugned order
dated 30.08.2024 passed by the learned Civil Judge (Sr. Division), Court No.2,
Udaipur, Gomati Judicial District in Civil Misc. case No.15 of 2024 arising out
of T.S. No.05 of 2022 is set aside. The proposed amendments under Order VI
Rule 17 of the CPC are allowed with a cost of Rs.5,000/- (rupees five
thousand) in favour of the defendants to be paid on the next date before the
learned trial Court. The defendants be allowed opportunity to file additional
written statement.
15. The present revision petition is disposed of with the aforesaid
observations.
Pending application(s), if any, also stands disposed of.
(APARESH KUMAR SINGH), CJ
Pulak
PULAK BANIK Digitally signed by PULAK BANIK
Date: 2025.02.13 17:24:00 +05'30'
