Tripura High Court
Sri Biswajit Banik vs Sri Sankar Prasad Roy on 8 January, 2025
Page 1 of 11
HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
CRP No.96 of 2024
1. Sri Biswajit Banik, aged about 40 years, son of Sri Arun Banik, resident of
Adarsha Palli, College Tilla, P.O. Agartala College-799004, P.S. East
Agartala, District- West Tripura.
2. Smt. Dolli Banik, aged about 65 years, wife of Sri Arun Banik, resident of
Adarsha Palli, College Tilla, P.O. Agartala College-799004, P.S. East
Agartala, District- West Tripura.
...... Defendant-Petitioner(s)
VERSUS
1. Sri Sankar Prasad Roy, son of late Krishna Mohan Roy, resident of
Banamalipur, Jail Road, near Lal Bahadur Chowmuhani, P.O. Agartala-
799001, P.S.- East Agartala, District- West Tripura.
...... Plaintiff-Respondent(s)
2. Assistant Municipal Commissioner, East Zone, Agartala Municipal
Corporation, Jail Ashram Road, Near Satadal Sangha, P.S. East Agartala,
District- West Tripura.
...... Proforma-Defendant-Respondent(s)
For Petitioner(s) : Mr. A. Sengupta, Advocate.
For Respondent(s) : Mr. Arijit Bhowmik, Advocate,
Mr. Dipak Deb, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Date of argument and delivery of Judgment & Order : 8th January, 2025.
Whether Fit for Reporting : YES.
JUDGMENT & ORDER (ORAL)
Heard Mr. A. Sengupta, learned counsel appearing for the
petitioner and also heard Mr. Arijit Bhowmik, learned counsel appearing for
the respondent No.2-AMC and Mr. Dipak Deb, learned counsel appearing
for the plaintiff-respondent.
[2] Application under Order VI Rule 17 by the plaintiff has been
allowed by the impugned order dated 02.07.2024 in Civil Misc 25 of 2023
arising out of T.S. No.08 of 2021 which has aggrieved the defendants to
approach this Court under Article 227 of the Constitution of India. The suit
was instituted for a decree of declaration that the construction of the building
made by the defendants on Schedule-B of the suit land without keeping
required space from the eastern boundary line of the Schedule A of the suit
land i.e. from the western boundary line of Schedule-B of the suit land of
defendants and also without any approval and permission from the Agartala
Municipal Corporation is illegal, unauthorized and liable to be demolished.
The plaintiff also sought a declaration that demolition of the existing
boundary wall in between eastern boundary line of schedule-A land and
western boundary line of schedule-B land by the defendant is illegal and
reconstruction of the boundary wall by encroachment of the portion of the
Schedule-A land of the plaintiff forcibly without permission of the
Corporation by way of encroachment is also illegal and void. Plaintiff also
sought a decree for permanent injunction restraining the defendants from
constructing the building within required space of 3.50 metres from the
boundary line of the respective suit lands of the plaintiff and defendants and
also to reconstruct the boundary wall encroaching the Schedule-A suit land
of the plaintiff on the basis of false and fabricated demarcation. Petitioner
also sought mandatory injunction directing the defendants for demolition of
3 storied building constructed by them on the Schedule-B land without
filling the required space of 3.50 metres from the western boundary line of
Schedule B of the suit land.
[3] During hearing of the case, the order dated 01.05.2021 passed
by the learned Trial Court in Misc(inj) No.03 of 2021 in the same suit has
been placed whereby the learned Trial Court had ordered that pending
disposal of the main suit bearing T.S. No.08 of 2021, all the parties to the
petition were directed to maintain status quo. This order remains
unchallenged. The proceedings of the suit progressed further. Issues were
framed and examination-in-chief of four plaintiff witnesses was submitted
when this amendment application under Order VI Rule 17 was preferred by
the plaintiff. Plaintiff contended that at the time of institution of the suit,
they could not take measurement of the encroached portion of the homestead
land after erection of new boundary wall due to resistance of the defendants
and other unknown persons. They could not incorporate the fact of
encroachment of the total land and also could not make the prayer for
recovery of possession of the encroached portion of the homestead land of
the plaintiff of Schedule-A under Section 38 of the Specific Relief Act.
However, they prayed for mandatory injunction for demolition of the newly
erected boundary wall forcibly. It was in these circumstances that the
plaintiff sought amendment of the plaint for incorporation of the illegal acts
of defendants for demolition of the old existing boundary wall and for
recovery of the encroached portion of the homestead land of the plaintiff in
the extreme eastern side of the homestead land of the plaintiff covered by the
defendants in their homestead land in Schedule-B of the plaint by illegal
erection of new boundary wall. They also sought to incorporate the prayer
for getting possession of the encroached portion in the homestead land of the
plaintiff.
[4] There were so many cases between the previous owners of the
homestead land of defendants and the plaintiff regarding the boundary
dispute. Accordingly, they sought insertion of certain averments in the
relevant paragraph of the plaint and also in the prayer portion to the extent
that a decree be passed to recover the Schedule C of the suit land of the
plaintiff by demolition of the new boundary wall illegally erected by the
defendants by encroaching the Schedule-C of the suit land being the part of
Schedule-A of the homestead land of the plaintiff. They also sought
insertion of Schedule-C of the suit land at page 17 of the plaint after
Schedule-B of the plaint giving the description of the Schedule-C of the suit
land.
[5] The defendants had objected to the proposed amendment by
filing a written objection inter alia taking a plea that these averments and
prayer are being sought to be incorporated as the plaintiff had filed the suit
in an urgency to get an interim injunction. Averments made on the question
of encroachment of the plaintiff‟s land were denied and disputed by the
defendants. Further averments regarding the inability of the plaintiff to take
measurement of the encroached portion of the homestead land and to
incorporate a prayer for recovery of possession was also being denied and
disputed. The learned Trial Court after hearing the parties chose to allow the
prayer inter alia observing as under :
"In the present case in hand where at the stage of the cross-examination of the
witnesses of the plaintiff- petitioners submitted this prayer for amendment without
justify any reason of such delay approach for amendment. If we go through the
application for amendment in details as well as the case record of the main suit, then
we did not find any necessary step taken by the plaintiff-petitioner side till the
commencement of the trial for seeking amendment. But if we consider the fact of
dispute of this case and also the nature of reliefs sought for by the plaintiff-
petitioner, then it comes forward that without particulars of measurement of
encroached land under the homestead property, it will create difficulties to
adjudicate the issue in respect of controversy between the parties as to who is
entitled to remain in possession in respect of what extend of property. Moreover if in
past there was any litigation between the plaintiff-petitioner and the vendor of
defendant-OPs in respect of same suit land, then the result of that suit should be
incorporated here for avoiding conflict of decisions in near future. Now, after
considering the decisions of Hon'ble Supreme Court of India, at this stage, in this
present case if the prayer of amendment will not allow then the very purpose of this
suit will be frustrated and which will invite numbers of litigation in near future as
without seeking relief for recovery of possession plaintiff-petitioner cannot ascertain
the actual relief which he prayed for.
The amendment is therefore necessary in order to adjudicate the real controversy
between the parties.
The question of defendant-OPs suffering prejudice or irreparable injury also does not
arise since it is right to the defendant-OPs to file additional written statement raising
appropriate contentions including one of denial of trespass and bar of limitation.
Moreover, if the prayer for proposed amendment will allow then it will not alter the
nature and character of the suit. In view of the grounds of amendment which sought
for and having regard to the fact of the present suit, the application on behalf of the
plaintiff-petitioner under Order VI Rule 17 of CPC for amendment of the plaint as
per the schedule mentioned is hereby allowed. Hence, this case is disposed of
contested."
[6] Learned counsel for the petitioner submits that the learned Trial
Court despite noticing the proviso to Order VI Rule 17 of CPC and the fact
that the trial had commenced chose to allow the prayer although it itself had
recorded that the plaintiff had not been able to justify the reason for delay in
seeking amendment. In these circumstances, the purpose of the proviso
introduced by the amendment to the Civil Procedure Code with effect from
2002 would be defeated. The defendants would be hugely prejudiced. He has
placed reliance upon a decision of the Apex Court in case of
Ajendraprasadji N Pande & Another versus Swami Keshavprakeshdasji N
& others, reported in 2007 AIR SCW 513 and also a decision of this Court
in case of Subhas Banik versus Krishna Kamal Banik, reported in 2014 0
Supreme(Tri) 411 in CRP No.92 of 2014 dated 18.12.2014.
[7] Learned counsel for the plaintiff-respondent has supported the
impugned decision. It is submitted that the learned Trial Court has
categorically held that though there may be delay in seeking the amendment
on the part of the plaintiff but in order to adjudicate the real issue in
controversy between the parties and as to who is entitled to remain in
possession in respect of what extent of the property and to avoid conflicting
decisions in view of the past litigations between the plaintiff and vendors of
the defendant, it would be appropriate to allow the prayer for amendment
otherwise the very purpose of the suit would be frustrated.
[8] Learned counsel for the plaintiff/respondent further submits that
the proposed amendment is very much connected to the subject matter of the
suit and the cause of action raised in the plaint along with the reliefs prayed
earlier. It would indeed help the learned Trial Court to determine the real
question in controversy between the parties. Moreover, the defendant/Op has
been allowed to file additional written statement after allowing the
amendment. He further submits that the approach of the learned Trial Court
in such matter should be to determine the real controversy and not get
bogged down in the technicalities as procedural law is the handmaid of
justice.
[9] Mr. Arijit Bhowmik, learned counsel for the respondent No.2-
AMC has also supported the impugned order. He submits that the approach
of the learned Trial Court to determine the real issue in controversy
overrides all other technicalities which the rival parties may agitate. He has
placed reliance upon a decision of the Apex Court in case of State of
Madhya Pradesh versus Union of India and another, reported in (2011) 12
SCC 268 (paragraph 7 to 10). Relying upon the judgment, he submits that
the purpose and object of Order VI Rule 17 of the Code is to allow either
party to alter or amend his pleadings in such manner and on such terms as
may be just but the Courts while deciding such prayers should not adopt a
hypertechnical approach though amendment cannot be claimed as a matter
of right under all circumstances. Liberal approach should be the general rule,
particularly in cases where the other side can be compensated with costs.
Normally amendments are allowed in the pleadings to avoid multiplicity of
litigations. Therefore, the impugned order does not warrant any interference.
[10] On consideration of rival submissions of learned counsel for the
parties, pleadings referred to hereinabove and placed from record, this Court
is of the opinion that the jurisdiction of the learned Trial Court in its
endeavour to determine the real question in controversy between the parties
should not be fettered as is also the purpose and object of allowing
amendment of pleadings under Order VI Rule 17 of the CPC. In the facts of
the present case though issues have been framed and examination-in-chief of
four plaintiff witnesses have been submitted but on a conspectus of facts
referred from the original plaint, the amendment application and its
objection it is but clear that the proposed amendment is very much related to
the subject matter of the suit property and the cause of action raised earlier
i.e. the dispute about the boundary wall existing between the homestead land
of the plaintiff and the defendants as per the description of the Schedule-A
and Schedule-B land of the plaintiff and defendants respectively.
[11] Therefore, the learned Trial Court though had observed that
there was delay in making a prayer for amendment by the plaintiff but if the
fact of the dispute and the nature of reliefs sought by the plaintiff/petitioner
is taken into account, it would show that without particulars of measurement
of encroached land under the homestead property it will create difficulty to
adjudicate the issue in controversy between the parties as to who is entitled
to remain in possession in respect of what extent of property. The very
purpose of the suit will be frustrated if the amendment is not allowed. The
opinion of the Apex Court in the case of State of Madhya Pradesh (supra)
referred to by the learned counsel for the respondent No.2-AMC is aptly
quoted hereunder:
7. The above provision 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 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. The proviso, to some extent, curtails absolute discretion to
allow amendment at any stage. Now, if application is filed after commencement of
trial, it must be shown that in spite of due diligence, such amendment could not have
been sought earlier.
8. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to
alter or amend his pleadings in such manner and on such terms as may be just.
Amendment cannot be claimed as a matter of right and under all circumstances, but
the courts while deciding such prayers should not adopt a hypertechnical approach.
Liberal approach should be the general rule, particularly in cases where the other
side can be compensated with costs. Normally, amendments are allowed in the
pleadings to avoid multiplicity of litigations.
9. Inasmuch as the plaintiff State of Madhya Pradesh has approached this Court
invoking the original jurisdiction under Article 131 of the Constitution of India, the
Rules framed by this Court i.e. the Supreme Court Rules, 1966 (in short "the Rules")
have to be applied to the case on hand. Order 26 speaks about "pleadings generally".
Among various Rules, we are concerned about Rule 8 which reads as under:
"8. The Court may at any stage of the proceedings allow either party to amend his
pleadings in such manner and on such terms as may be just, but only such
amendments shall be made as may be necessary for the purpose of determining the
real question in controversy between the parties."
The above provision, which is similar to Order 6 Rule 17 of the Code prescribes that
at any stage of the proceedings, the Court may allow either party to amend his
pleadings. However, it must be established that the proposed amendment is
necessary for the purpose of determining the real question in controversy between
the parties.
10. This Court, while considering Order 6 Rule 17 of the Code, in several judgments
has laid down the principles to be applicable in the case of amendment of plaint
which are as follows:
(i) Surender Kumar Sharma v. Makhan Singh [(2009) 10 SCC 626 : (2009) 4 SCC
(Civ) 294] , at para 5 : (SCC p. 627)
"5. As noted hereinearlier, the prayer for amendment was refused by the High Court on
two grounds. So far as the first ground is concerned i.e. the prayer for amendment was a
belated one, we are of the view that even if it was belated, then also, the question that
needs to be decided is to see whether by allowing the amendment, the real controversy
between the parties may be resolved. It is well settled that under Order 6 Rule 17 of the
Code of Civil Procedure, wide powers and unfettered discretion have been conferred on
the court to allow amendment of the pleadings to a party in such a manner and on such
terms as it appears to the court just and proper. Even if, such an application for
amendment of the plaint was filed belatedly, such belated amendment cannot be refused
if it is found that for deciding the real controversy between the parties, it can be allowed
on payment of costs. Therefore, in our view, mere delay and laches in making the
application for amendment cannot be a ground to refuse the amendment."
(ii) North Eastern Railway Admn. v. Bhagwan Das [(2008) 8 SCC 511] , at para 16 :
(SCC p. 517)
"16. Insofar as the principles which govern the question of granting or disallowing
amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned,
these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at
any stage of the proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda
Patil [AIR 1957 SC 363] which still holds the field, it was held that all amendments
ought to be allowed which satisfy the two conditions : (a) of not working injustice to the
other side; and (b) of being necessary for the purpose of determining the real questions in
controversy between the parties. Amendments should be refused only where the other
party cannot be placed in the same position as if the pleading had been originally correct,
but the amendment would cause him an injury which could not be compensated in costs."
(iii) Usha Devi v. Rijwan Ahamd [(2008) 3 SCC 717 : (2008) 1 SCC (Civ) 922] , at para
13 : (SCC p. 722)
"13. Mr Bharuka, on the other hand, invited our attention to another decision of this
Court in Baldev Singh v. Manohar Singh [(2006) 6 SCC 498] . In para 17 of the decision,
it was held and observed as follows : (SCC pp. 504-05)
„17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17
CPC provides that amendment of pleadings shall not be allowed when the trial of the suit
has already commenced. For this reason, we have examined the records and find that, in
fact, the trial has not yet commenced. It appears from the records that the parties have yet
to file their documentary evidence in the suit. From the record, it also appears that the suit
was not on the verge of conclusion as found by the High Court and the trial court. That
apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil
Procedure must be understood in the limited sense as meaning the final hearing of the
suit, examination of witnesses, filing of documents and addressing of arguments. As
noted hereinbefore, parties are yet to file their documents, we do not find any reason to
reject the application for amendment of the written statement in view of proviso to Order
6 Rule 17 CPC which confers wide power and unfettered discretion on the court to allow
an amendment of the written statement at any stage of the proceedings.‟"
(iv) Rajesh Kumar Aggarwal v. K.K. Modi [(2006) 4 SCC 385] , at paras 15 & 16 : (SCC
pp. 392-93)
"15. The object of the rule is that the courts should try the merits of the case that come
before them and should, consequently, allow all amendments that may be necessary for
determining the real question in controversy between the parties provided it does not
cause injustice or prejudice to the other side.
16. Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may)
and leaves it to the court to order amendment of pleading. The second part is imperative
(shall) and enjoins the court to allow all amendments which are necessary for the purpose
of determining the real question in controversy between the parties."
(v) Revajeetu Builders and Developers v. Narayanaswamy and Sons [(2009) 10 SCC 84 :
(2009) 4 SCC (Civ) 37] , at para 63 : (SCC p. 102)
"63. On critically analysing both the English and Indian cases, some basic principles
emerge which ought to be taken into consideration while allowing or rejecting the
application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of
the case;
(2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be
compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the
nature and character of the case; and
(6) as a general rule, the court should decline amendments if a fresh suit on the amended
claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with
application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
The above principles make it clear that courts have ample power to allow the application
for amendment of the plaint. However, they must be satisfied that the same is required in
the interest of justice and for the purpose of determination of real question in controversy
between the parties.
[12] The Apex Court has underlined that a liberal approach should
be the general rule particularly in cases where the other side can be
compensated with costs, and that amendments should be allowed to avoid
multiplicity of litigations. The approach of the Court should not be
hypertechnical though amendments cannot be claimed as a matter of right.
On the other hand, learned counsel for the petitioner has referred to the
decision of the Apex Court in case of Ajendraprasadji N Pande & another
(supra). At paragraph 52 of the judgment, the Apex Court had observed that
no facts were pleaded nor any grounds were raised in the amendment
application to even remotely contend that despite exercise of due diligence
these matters could not be raised by the appellants. Moreover, deposition of
evidence of three witnesses were over as well as the documentary evidence
were already tendered and that appellants‟ application at Exh.64 praying for
re-casting of the issues had been denied and the said order had attained
finality. Such amendment would, therefore, cause serious prejudice to the
contesting respondents.
[13] However, in the present facts of the case, this Court finds that
it is the opinion of the learned Trial Court that in order to determine the real
issue in controversy between the parties, the proposed amendment is
required to be allowed since without particulars of measurement of the
encroached land of the homestead property, it would be difficult to
determine as to which party is entitled to remain in possession in respect of
what extent of property. Taking a cue from the observations made by the
Apex Court in case of State of Madhya Pradesh (supra), this Court is of the
view that instead of adopting a hypertechnical approach in the facts of the
instant case, it would be advisable not to interfere in the matter and fetter the
jurisdiction of the learned Trial Court in its attempt to determine the real
issue in controversy in the suit and that too at a stage where only four
plaintiff witnesses have been examined-in-chief and the defendant has also
been allowed to file additional written statement to the proposed amendment
being allowed.
[14] Therefore, in the facts and circumstances discussed above, this
Court is not inclined to interfere in the matter. Accordingly, the instant civil
revision petition is dismissed.
Pending application(s), if any, also stands disposed of.
(APARESH KUMAR SINGH) CJ
DIPESH DEB Date: 2025.01.10 19:09:05
