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High Court Of Calcutta
Subhro Kamal Mukherjee
GULSHAN BIBI - Appellant
Versus
HASMAT ALI - Respondent
F. M. A. T. 01 Of 2004
Decided On : 03/14/2005
AMENDMENT OF WRITTEN STATEMENT - ORDER 6 RULE 17 CPC - APPEAL AGAINST ORDER OF REMAND - ORDER 43 RULE 1(U) CPC - Whether the learned Judge in the lower Appellate Court substantially erred in law in allowing the application for amendment of the written statement filed by the defendant No. 1? Whether the learned Judge in the lower Appellate Court substantially erred in law in passing the impugned order of remand only for the purpose of adducing evidence by the parties in the Court below?
Fact of the Case:
The plaintiff filed a suit for declaration, partition, recovery of possession, and mesne profits. The trial court decreed the suit on contest, inter alia, for partition with separate possession in preliminary form against the contesting defendant and ex parte against the rest. The defendant preferred an appeal, which was allowed, and the suit was remanded for retrial. The trial court again decreed the suit for partition and separate possession in preliminary form. The defendant filed an application for amendment of the written statement to deliver a counter-claim for declaration of his exclusive title to the suit property by adverse possession. The trial court allowed the application. The plaintiff filed an application under Section 115 of the CPC against the order allowing the amendment of the written statement, which was later converted into an application under Article 227 of the Constitution of India. The High Court allowed the plaintiff to withdraw the application with liberty to agitate the validity and legality of the order allowing the amendment of the written statement before the higher appellate forum. The District Judge passed an order of remand, setting aside the trial court's judgment and decree and sending the suit back on remand to the court below with opportunities to both parties to adduce further evidence.
Finding of the Court:
The High Court held that the trial court substantially erred in law in allowing the application for amendment of the written statement filed by the defendant No. 1 at the belated stage, which was filed by the defendant No. 1 with the mala fide intention to drag the proceeding. The High Court also held that the District Judge substantially erred in law in passing the impugned order of remand only because the learned Advocate appearing for the defendant No. 1 submitted before him that necessary chances should be given to his client to adduce his evidence, if any, in support of an amended written statement.
Issues: 1. Whether the learned Judge in the lower Appellate Court substantially erred in law in allowing the application for amendment of the written statement filed by the defendant No. 1? 2. Whether the learned Judge in the lower Appellate Court substantially erred in law in passing the impugned order of remand only for the purpose of adducing evidence by the parties in the Court below?
Ratio Decidendi: 1. The defendant No. 1 filed the application for amendment of the written statement at the belated stage just to delay the disposal of the suit. 2. The defendant No. 1 did not adduce any evidence to support his claim that he had incurred expenditure for improvement, development, or construction of the suit premises, nor did he prove that he had contributed to the common fund for acquiring and improving the suit premises. 3. The defendant No. 1 offered no explanation as to why the counter-claim could not be filed when he himself admitted in the application for amendment that he intended to claim exclusive title in respect of the suit property by making an alternative case of ouster and by way of adverse position. 4. The learned District Judge passed the order of remand only because the learned Advocate appearing for the defendant No. 1 submitted before him that necessary chances should be given to his client to adduce his evidence, if any, in support of an amended written statement.
Final Decision: The High Court allowed the appeal, set aside the order allowing the application for amendment of the written statement, rejected the application for amendment of the written statement filed by the defendant No. 1, and set aside the order of remand passed by the lower Appellate Court. The High Court sent back Title Appeal No. 5 of 2000 to the lower Appellate Court for disposal of the appeal on merits on the basis of the materials on record as expeditiously as possible.
( 1 ) THIS is an appeal against an order of remand.
( 2 ) THIS case has a chequered history. Certain facts are necessary to appreciate the points involved in this appeal.
( 3 ) THE plaintiff on or about September 24, 1980 instituted this suit for declaration, partition, recovery of possession and mesne profits.
( 4 ) BY judgment and decree dated February 5,1997 the learned Civil Judge, (Senior Division) at Port Blair, decreed the said suit on contest, inter alia, for partition with separate possession in preliminary form against the contesting defendant No. 1 and exparte against the rest.
( 5 ) THE defendant No. 1 preferred Title Appeal No. 02 of 1997. By judgment arid decree dated March 30,1999 the learned District Judge at Port Blair allowed the said appeal and sent back the suit to the Trial Court on remand for the purpose of retrial.
( 6 ) THE Trial Court by judgment and decree dated October 25, 2000 again decreed the suit for partition and separate possession in preliminary form. The learned Trial Judge, however, noted in his judgment that despite opportunity, the defendant No. 1 did not adduce any evidence in support of his allegation that he had incurred expenditure for improvement, development or construction in respect of the suit premises. The learned Trial Judge recorded that there was no supportive evidence that the defendant No. l had contributed to the common fund.
( 7 ) THE defendant No. l preferred Title Appeal No. 5 of 2000 in the Court of the learned District Judge at Port Blair. The defendant No. 1, in connection with the said title appeal, filed an application under Order 6 Rule 17 of the code of Civil Procedure for amendment of his written statement. By filing such application for amendment of the written statement, the defendant No. l, inter alia wanted to deliver a counter-claim against the plaintiff and other defendants for declaration of his exclusive title to the suit property by adverse possession. The learned District Judge by order No. 21 dated March 19, 2002 allowed the said application for amendment of the written statement filed by the defendant no. 1.
( 8 ) THE present appellant filed an application under section 115 of the Code of Civil Procedure against the said order of the learned District Judge allowing the application for amendment of the written statement. Subsequently, however, the said application was converted into application under Article 227 of the constitution of India. Jayanta Kumar Biswas, J. by order dated June 17, 2003, inter alia, permitted the present appellant to withdraw her said revisional application with liberty to her to agitate the validity and legality of the order allowing the said application for amendment of the written statement before the higher appellate forum, if occasion arose for the same.
( 9 ) THE learned District Judge by the present order of remand allowed the said appeal and set aside the judgment and decree passed by the learned Civil judge, (Senior Division) at Port Blair and sent back the suit on remand to the court below with opportunities to both the parties to adduce further evidence.
( 10 ) BEING aggrieved the plaintiff has come up with this appeal against the said order of remand.
( 11 ) MRS. Anjili Nag, learned Advocate, appearing in support of the appeal, submits that the learned Judge in the lower Appellate Court substantially erred in law in allowing the application for amendment of the written statement at the belated stage filed by the defendant No. 1 and the learned Judge substantially erred in law accepting the submission of the learned Advocate appearing for the defendant No. 1 that necessary chances should be given to the defendant No. 1 to adduce his evidence, if any, in support of his amended written statement.
( 12 ) MR. Haradhan Banerjee, learned Advocate, appearing for the defendant no. 1 submits that this is a simple order of remand and as such it is not open to the appellant to assail the o
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