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2012 Supreme(Cal) 42
IN THE HIGH COURT OF CALCUTTA
Dipankar Datta, J.
DOLI KARMAKAR
Vs.
RANJAN KUMAR SADHUKHAN
C.O. No. 3980 of 2011
Decided on : 16th January, 2012
Somnath Roy Chowdhury, Debashis Banerjee, S. Chakraborty, Debrup Bhattacharjee, for the petitioner;
R.N. Dutta, S. Mal, H.K. Halder, for the opposite party.
The proviso to Order 6 Rule 17 of the Civil Procedure Code is not a fetter to the exercise of discretion to allow amendment of pleadings after commencement of Trial, provided that the amendment is necessary for the determination of the real question in controversy between the parties.
Headnote:
AMENDMENT OF PLEADINGS - WRITTEN STATEMENT - ORDER 6 RULE 17, CIVIL PROCEDURE CODE - AMENDMENT OF PLEADINGS AFTER COMMENCEMENT OF TRIAL - REJECTION OF APPLICATION - EXERCISE OF DISCRETION - PRINCIPLES TO BE CONSIDERED.
Fact of the Case:
The petitioner, a tenant, filed an application under Order 6 Rule 17, Civil Procedure Code for amending the written statement filed by her. She proposed to introduce certain sentences after paragraph 17 of the written statement, which are to the following effect : "Admittedly the defendant is a tenant under the plaintiff in 3(three) different tenancies. The rate of monthly rent is Rs.500/- in the tenancy: similarly the rate of rent for the second tenancy is Rs.145/- per month and lastly, another tenancy is Rs.55/- per month. All the tenancies are being run according to Bengali calendar month. The defendant has trade licence and other necessary paper for the purpose of running shop/shops. Be it mentioned here that amongst the tenancies one tenancy is being used as manufacturing purpose wherein Steel Almirah and other things are manufactured there. So, for eviction 6Csix) months notice is compulsory. Moreover, the induction have been made in three different times and the shops are in different places. Although all the monthly rents are being paid according to Bengali Calendar month, but the plaintiff so far issued three separate rent receipts. So for eviction of the defendant three separate notice to quit must be issued. So, the Notice to quit for this snit is totally bad and invalid. The plaintiff should have filed three separate Eviction Suits for three tenancies. The defendant did not receive Notice to quit nor defendant gave any reply by engaging any learned Advocate."
Finding of the Court:
The Court held that the Trial Court erred in rejecting the petitioner's application for amendment of her written statement, as the proviso to Order 6 Rule 17 of the Civil Procedure Code is not a fetter to the exercise of discretion to allow amendment after commencement of Trial. The Court further held that the basic test that is to be applied for deciding whether an amendment should be allowed or not is whether the amendment is necessary for the determination of the real question in controversy between the parties.
Issues: 1. Whether the Trial Court erred in rejecting the petitioner's application for amendment of her written statement? 2. Whether the proviso to Order 6 Rule 17 of the Civil Procedure Code is a fetter to the exercise of discretion to allow amendment after commencement of Trial?
Ratio Decidendi: 1. The Trial Court erred in rejecting the petitioner's application for amendment of her written statement, as the proviso to Order 6 Rule 17 of the Civil Procedure Code is not a fetter to the exercise of discretion to allow amendment after commencement of Trial. 2. The basic test that is to be applied for deciding whether an amendment should be allowed or not is whether the amendment is necessary for the determination of the real question in controversy between the parties.
Final Decision: The Court set aside the Trial Court's order rejecting the petitioner's application for amendment of her written statement and allowed the revisional application. The Court directed the Trial Court to decide the application under Order 6 Rule 17 afresh, keeping in mind the principles laid down by the Court.
1. The petitioner is the defendant in a suit for eviction instituted by the opposite party. It is pending on the file of the learned Civil Judge (Junior Division) at Barasat, District 24-Parganas (N).
2. It appears from a reading of the plaint that the petitioner was inducted as a tenant in respect of three shop rooms, described separately in schedules (a), (b) and (c) appended to the plaint, at a monthly rental of Rs.500/-, Rs.145/- and Rs.55/- respectively. Eviction has been prayed for on grounds of default in payment of rent and reasonable requirement of the suit properties by the opposite party, being the plaintiff in the suit.
3. The written statement, filed by the petitioner, records her admission that she is a tenant under the opposite party in respect of the suit properties at the monthly rental of Rs.500/-, Rs.145/-, and Rs.55/- respectively payable according to Bengali Calendar month. However, she disputed the validity, legality and sufficiency of the notice to quit dated May 2, 2006 and claimed that no notice was served upon her. She also denied that she was a defaulter in payment of rent or that the opposite party required the suit properties for own use.
4. It was at the stage of witness action that the petitioner filed an application under Order 6 Rule 17, Civil Procedure Code for amending the written statement filed by her. She proposed to introduce certain sentences after paragraph 17 of the written statement, which are to the following effect :
"Admittedly the defendant is a tenant under the plaintiff in 3(three) different tenancies. The rate of monthly rent is Rs.500/- in the tenancy: similarly the rate of rent for the second tenancy is Rs.145/- per month and lastly, another tenancy is Rs.55/- per month. All the tenancies are being run according to Bengali calendar month. The defendant has trade licence and other necessary paper for the purpose of running shop/shops.
Be it mentioned here that amongst the tenancies one tenancy is being used as manufacturing purpose wherein Steel Almirah and other things are manufactured there. So, for eviction 6Csix) months notice is compulsory. Moreover, the induction have been made in three different times and the shops are in different places. Although all the monthly rents are being paid according to Bengali Calendar month, but the plaintiff so far issued three separate rent receipts. So for eviction of the defendant three separate notice to quit must be issued. So, the Notice to quit for this snit is totally bad and invalid. The plaintiff should have filed three separate Eviction Suits for three tenancies. The defendant did not receive Notice to quit nor defendant gave any reply by engaging any learned Advocate."
5. The petitioner pleaded that the amendment sought for by her is formal in nature and would not change the nature of character of the suit and further that despite exercise of due diligence, the defect in the written statement could not be detected earlier.
6. The learned Judge considered the application for amendment of written statement and by her order dated November 2, 2011 rejected the same on the grounds that (i) the facts that the petitioner seeks to plead in the written statement upon amendment already find place in the written statement that has been filed by her; (ii) the amendment sought for did not relate to any subsequent event; and (iii) in view of the proviso to Rule 17 of Order 6 of the Code, there was no scope to amend the pleadings after Trial has commenced.
7. Mr. Roy Chowdhury, learned advocate appearing for the petitioner contended that the learned Judge grossly erred in the exercise of her discretion while declining the prayer for amendment. According to him, the learned Judge misdirected herself in forming a view that after Trial has commenced, amendment of pleadings cannot be allowed.
8. He further contended that even though the proposed amendment may not relate to any subsequent event, yet, the Court retains the power to allow an amendmen
