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High Court Of Calcutta
Before Mr. Justice Jyotirmay Bhattacharya
SK.ABUL KALAM - Appellant
Versus
UMAPADA MAITY - Respondent
C. O. 4680 Of 2006
Decided On : 08/31/2007
AMENDMENT OF PLAINT - WAKF TRIBUNAL - REJECTION OF AMENDMENT - VALIDITY - REQUIREMENTS FOR AMENDMENT - INTERPRETATION OF SECTION 34 OF THE SPECIFIC RELIEF ACT, 1963 - APPLICABILITY OF LIMITATION ACT, 1963 TO SUITS FOR POSSESSION OF WAKF PROPERTY UNDER SECTION 107 OF THE WAKF ACT, 1995.
Fact of the Case:
The petitioners, plaintiffs in a suit before the Wakf Tribunal, sought to amend their plaint to incorporate additional reliefs, including recovery of possession and declarations regarding the invalidity of certain deeds and the binding effect of those deeds on the Wakf Estate. The Tribunal rejected the amendment application, holding that the plaintiffs were attempting to introduce a new case and that the amendment was not necessary for determining the real question in controversy.
Finding of the Court:
The High Court allowed the revision application and set aside the Tribunal's order rejecting the amendment. The Court held that the amendment was necessary for the complete adjudication of the dispute in the suit, as the plaintiffs were claiming to be out of possession and could not obtain the relief sought in the original plaint due to the bar under Section 34 of the Specific Relief Act. The Court also held that the question of limitation could not be considered at the stage of considering the amendment application and that the applicability of Section 107 of the Wakf Act, 1995, which excludes the application of the Limitation Act to suits for possession of Wakf property, would be a matter for consideration if the amendment was allowed.
Issues: 1. Whether the Tribunal erred in rejecting the plaintiffs' application for amendment of plaint? 2. Whether the amendment sought by the plaintiffs was necessary for the complete adjudication of the dispute in the suit? 3. Whether the question of limitation could be considered at the stage of considering the amendment application? 4. Whether the provisions of Section 107 of the Wakf Act, 1995, were applicable to the plaintiffs' claim for recovery of possession.
Ratio Decidendi: 1. The Court held that the Tribunal erred in rejecting the plaintiffs' application for amendment of plaint, as the amendment was necessary for the complete adjudication of the dispute in the suit. The plaintiffs were claiming to be out of possession and could not obtain the relief sought in the original plaint due to the bar under Section 34 of the Specific Relief Act. The amendment sought to incorporate additional reliefs, including recovery of possession and declarations regarding the invalidity of certain deeds and the binding effect of those deeds on the Wakf Estate. 2. The Court held that the question of limitation could not be considered at the stage of considering the amendment application. The applicability of Section 107 of the Wakf Act, 1995, which excludes the application of the Limitation Act to suits for possession of Wakf property, would be a matter for consideration if the amendment was allowed.
Final Decision: The High Court allowed the revision application and set aside the Tribunal's order rejecting the amendment. The plaintiffs were directed to carry out the amendment in their plaint within two weeks from the date of the order. The defendants were granted leave to file an additional written statement to the amended pleadings of the plaint within four weeks from the date of service of the copy of the amended plaint upon them.
( 2 ) THE plaintiffs/petitioners filed a suit for declaration and injunction against the opposite parties in the learned Court of the Wakf Tribunal.
( 3 ) IN the said suit the plaintiffs/petitioners prayed for a declaration that various Deed of Conveyances executed by the defendant Nos. 10 to 18 in favour of Ram Krishna Jana, the predecessor of defendant Nos. 19 to 25 in respect of 'a' and 'b' schedule properties and the subsequent deed executed by the predecessor of the defendant Nos. 19 to 25, namely, raj Krishna Jana dated 23rd August, 1960 in favour of the defendant Nos. 1 to 4 and the predecessors of defendant Nos. 5 to 9, namely, Narayan chandra Jana, since deceased, are void ab-initio with a further declaration that the said deeds which were recorded in the relevant book and volume with the concerned registration office, stands cancelled.
( 4 ) A decree for permanent injunction for restraining the defendant nos. 1 to 9, their men and agents from disturbing the plaintiffs in respect of the peaceful possession and enjoyment of 'a' and 'b' schedule property belonging to Sk. Jasimuddin and Sk. Kasimuddin Wakf Estate, was also prayed for in the said suit. Various other incidental reliefs were also claimed in the said suit.
( 5 ) THE defendants/opposite party Nos. 1 to 9 are contesting the said suit by filing written statement denying the material allegations made out by the plaintiffs in the plaint. The said defendants claimed in their written statement that they are in possession of the suit property all through out since 1958.
( 6 ) THE parties have already led their respective evidence in the said suit. After conclusion of evidence, hearing has commenced.
( 7 ) AT this stage, the plaintiffs/petitioners have filed an application for amendment of plaint for incorporating further reliefs by way of recovery of possession and for declaration that the impugned deed of conveyances are not binding upon the Wakf Estate with a further declaration that the 'a' schedule property belongs to Wakf Estate being Wakf Liluah.
( 8 ) A relief by way of permanent injunction was also sought to be incorporated, inter alia, for restraining the defendant Nos. 1 to 9, their men and agents from constructing any pucca building or making any addition and alteration, changing in nature and character of the Wakf Estate, namely, Sk. Jasimuddin and Sk. Kasimuddin Wakf Estate.
( 9 ) IN the proposed amendment, the plaintiffs wanted to incorporate those additional reliefs by alleging that during the pendency of the suit, the defendant Nos. 1 to 9 forcibly took possession of the 'a' and 'b' schedule property and tried to construct a pucca building thereon changing its nature and character but failed to do so due to vehement resistance. Incidental amendments regarding the valuation of the suit property as well as the description of the relief as made out in the concise statement of the plaint was sought for, accordingly.
( 10 ) THE defendants/opposite parties contested the petitioners' prayer for amendment of the plaint by filing objection contending therein that such an application for amendment is a mala fide one. It was, further, stated therein that when plaintiffs themselves in their evidence admitted that the defendant Nos. 1 to 9 have been possessing the suit property since the date of their purchase, the amendment as sought for, cannot be allowed, as, if such amendment is allowed, the effect of admission made by the plaintiffs in their evidences will be nullified.
( 11 ) THUS, the defendants/opposite parties prayed for rejection of the plaintiffs' application for amendment of plaint.
( 12 ) SUCH prayer of the plaint
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