Back
2010 Supreme(Cal) 47
HIGH COURT OF CALCUTTA
JYOTIRMAY BHATTACHARYA, J.
Shyam Sundar Kayal - Appellant
Versus
Mist Valley Vinimoy Pvt. Ltd – Respondent
Appeal No : C.O. 228 of 2008 C.O. No. 463 of 2008 C.O. No. 464 of 2008
Decided On : Jan 15, 2010
Haradhan Banerji, Subhrangshu Dutta, Partha Pratim Mukherjee
Amendment of plaint sought before commencement of trial, not introducing new cause of action but elaborating on existing challenge, not hit by Order 9 Rule 9 CPC, and relating to subsequent events c-related to original cause of action, should be allowed.
Headnote:
AMENDMENT OF PLAINT - PARTIALLY ALLOWED - PARTIALLY REJECTED - CIVIL PROCEDURE CODE, 1908 - ORDER 6 RULE 17 - ORDER 9 RULE 9 - ORDER 1 RULE 10 - REVISION - AMENDMENT SOUGHT BEFORE COMMENCEMENT OF TRIAL - NO PREJUDICE TO EITHER PARTY - AMENDMENT ALLOWED - NO NEW CAUSE OF ACTION INTRODUCED - ELABORATION OF EXISTING CHALLENGE - VALIDITY OF TRANSACTION - TITLE OF VENDOR - ISSUES IN SUIT - AMENDMENT NOT HIT BY ORDER 9 RULE 9 - SUBSEQUENT EVENTS - COURT'S POWER TO GIVE REMEDIES - AMENDMENT ALLOWED - ADDITION OF PARTIES - VENDORS OF DEFENDANT AND MUNICIPAL AUTHORITY - NECESSARY PARTIES - AMENDMENT ALLOWED.
Fact of the Case:
Plaintiff filed a suit for declaration of his ownership in the suit property and injunction restraining the defendant from making any construction or dispossessing the plaintiff. The defendant claimed title through a deed executed by the wife of the original settlor. The plaintiff sought to amend the plaint to introduce additional averments regarding the legality of the mutation of the defendant's name in municipal records and the validity of the sanctioned plan, as well as to add additional prayers for declaring the sale deed void and the defendant's title invalid. The Trial Court allowed part of the amendment but rejected the part seeking to introduce the additional averments and prayers, holding that no reasonable explanation was given for not including them earlier and applying the proviso to Order 6 Rule 17 CPC. The plaintiff filed a revision petition challenging the rejection of the amendment.
Finding of the Court:
The Court held that the Trial Court erred in rejecting the plaintiff's prayer for amendment in part by applying the proviso to Order 6 Rule 17 CPC, as amendment was sought before the commencement of the trial. The Court held that the amendment did not introduce a new cause of action but sought to elaborate on the challenge already on record regarding the defendant's title and the validity of the transaction. The Court further held that the amendment was not hit by Order 9 Rule 9 CPC, as the merit of the proposed amendment could only be assessed during the trial after the amendment was allowed. The Court also held that the subsequent events which were allowed to be brought on record by amendment were c-related to the cause of action pleaded in the original plaint and that the Court's power to give remedies to the parties in the altered situation was well recognized in law. The Court allowed the plaintiff's prayer for amendment in full, subject to payment of costs to the defendant.
Issues: 1. Whether the Trial Court erred in rejecting the plaintiff's prayer for amendment in part by applying the proviso to Order 6 Rule 17 CPC? 2. Whether the amendment introduced a new cause of action? 3. Whether the amendment was hit by Order 9 Rule 9 CPC? 4. Whether the subsequent events which were allowed to be brought on record by amendment were c-related to the cause of action pleaded in the original plaint?
Ratio Decidendi: 1. The Court held that the Trial Court erred in rejecting the plaintiff's prayer for amendment in part by applying the proviso to Order 6 Rule 17 CPC, as amendment was sought before the commencement of the trial. 2. The Court held that the amendment did not introduce a new cause of action but sought to elaborate on the challenge already on record regarding the defendant's title and the validity of the transaction. 3. The Court held that the amendment was not hit by Order 9 Rule 9 CPC, as the merit of the proposed amendment could only be assessed during the trial after the amendment was allowed. 4. The Court held that the subsequent events which were allowed to be brought on record by amendment were c-related to the cause of action pleaded in the original plaint and that the Court's power to give remedies to the parties in the altered situation was well recognized in law.
Final Decision: The Court allowed the plaintiff's prayer for amendment in full, subject to payment of costs to the defendant.
1. SINCE the abovementioned three revisional applications are interrelated to each other, all these three revisional applications were heard analogously. The plaintiffs application for amendment of plaint was partly allowed and partly rejected by the learned Trial Judge vide Order No.30 dated 15th February, 2007. Part of the order by which the plaintiffs prayer for amendment of plaint was disallowed by the learned Trial Judge is the subject matter of challenge in the civil revisional application being C.O. No.228 of 2008 which was filed by the plaintiff/petitioner herein. The part of the order by which the plaintiffs prayer for amendment of plaint was partly allowed is the subject matter of challenge in the civil revisional application being C.O. No.464 of 2008 which was filed by the defendant. The other revisional application being C.O. No.463 of 2008 is directed against an order being No.37 dated 29th January, 2008 by which the plaintiffs prayer for addition of party was allowed by the learned Trial Judge. The said revisional application was filed by the defendant. Let me first of all consider the merit of the revisional applications being C.O. No.228 of 2008 and C.O. No.464 of 2008 hereunder. Re: C.O. No.228 of 2008: Facts in brief
2. The plaintiff filed the said suit for declaration of his ownership in the suit property with the further declaration that the defendant has not acquired any right, title or interest therein. A relief by way of permanent injunction was also sought for therein for restraining the defendant including his men, agents, employees and associates from making any construction on the suit property by changing the nature and character thereof and further for restraining them from dispossessing the plaintiff from the suit property and/or from selling/transferring/encumbering/alienating/assigning the suit property to any third party.
It was stated by the plaintiff in the plaint that originally the suit property belonged to Sushil Chandra Kayal who had executed a deed of settlement relating to his property for making provision for his wife during her lifetime with restriction on her power to sell, transfer or encumber the suit property in favour of any person. The plaintiff claimed his ownership in the suit property on the basis of the said deed of settlement as provision was also made for him in the said deed. It was further stated therein that since the wife of the settlor namely Nalini Bala has only life interest in the suit property and further since restriction was imposed on her power to transfer the suit property in the deed of settlement, the defendant cannot claim any right in the suit property by virtue of a socalled deed executed by the said Smt. Nalini Bala Kayal. Thus, the plaintiff claimed that since the defendant has not acquired any right, title and interest in suit property on the basis of any fake deed executed by Nalini Bala, the defendant should be restrained from raising any construction in the suit property. A reference of an earlier suit filed by one Kalyan Kumar (now deceased) against the said Nalini Bala Kayal and the plaintiff herein, concerning the rights of the parties in this suit property, was made in the plaint of the said suit. It was stated therein that the said suit was initially dismissed by the learned Trial Judge but the appeal preferred therefrom was ultimately disposed of by this Honble Court on compromise between the said Kalyan Kumar and Nalini Bala Kalyal with a rider that the suit stood dismissed as against Shyam Sundar Kayal, the plaintiff herein. It was further stated therein that the plaintiff herein challenged the said decree before the Honble Supreme Court by filing a special writ petition which was ultimately disposed of by the Honble Supreme Court with the finding that since the suit being Title Suit No.95 of 1979 was dismissed against the plaintiff herein, his right, title and interest in the suit property cannot be affected in any way. It was furth
