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IN THE HIGH COURT AT CALCUTTA
Biswanath Somadder, J.
Kanailal Maity
vs.
Kolkata Construction & Ors.
C.O. No. 3676 of 2007
Decided On: May 5, 2008
AMENDMENT OF PLAINT - ORDER 6 RULE 17 CPC - REJECTION - CHANGE IN NATURE AND CHARACTER OF SUIT - IMPERMISSIBLE - SUIT FOR PERMANENT INJUNCTION CANNOT BE CONVERTED INTO SUIT FOR DECLARATION AND CLAIMS DECREE.
Fact of the Case:
Plaintiff filed a suit for permanent injunction to restrain the defendants from changing the nature and character of the ground floor of the suit property. The cause of action arose from an agreement dated 30th October, 2003, which contained specific terms and conditions regarding the ground floor. The plaintiff sought to amend the plaint to include prayers for a declaration of title to the 'B' schedule property, mandatory injunction to restore possession, damages, and other reliefs. The trial court rejected the amendment application.
Finding of the Court:
The court held that the proposed amendment would absolutely change the nature and character of the suit, which was impermissible in law. The court found that the declaration sought in the amended prayers of the plaint was beyond the scope of the reliefs prayed for in the original plaint.
Issues: Whether the proposed amendment would change the nature and character of the suit?
Ratio Decidendi: The court relied on the principles laid down in Ragu Thilak D John vs. S. Rayappan & Ors. and Sampath Kumar vs. Ayyakannu & Anr. to hold that the amendment sought by the plaintiff was not permissible as it would alter the basic structure of the suit. The court distinguished the facts of the instant case from those in Ragu Thilak D John's case and Sampath Kumar's case, where the amendments were allowed as they did not change the basic structure of the suits.
Final Decision: The court dismissed the revisional application filed by the plaintiff with costs.
1. Heard the learned Advocate appearing on behalf of the petitioner, being the plaintiff in the suit pending in the learned Court below.
2. None appears on behalf of the opposite parties at the time of call, even though notice has been caused to be served.
3. The instant application under Article 227 of the Constitution of India is primarily directed against an order passed by the learned 1st Civil Judge (Junior Division) at Alipore, 24 - rarganas (South).
4. The order impugned has been passed by the learned Court below on 12th July, 2007, in Title Suit No. 124 of 2005. By the said order, the learned Court below has rejected the amendment application of the plaintiff under Order 6 Rule 17 of the Code of Civil. Procedure. The reasons recorded in the order dated 12th July, 2007, are reproduced herein-below:
"The record is taken up for passing order. Perused the amendment petition, the written objection, and other materials on record considered. It appears that the suit was initially dismissed under Order 7 Rule 11 CPC. Learned Appellate Court set aside the order of this Court and directed for trial of the suit. A plain reading of the amendment petition goes to show that the plaintiff has made out a new stay by way of amendment in order to fill up the lacuna of the plaint. While the original suit relates to a suit for permanent injunction, the present amendment attempts to alter the suit as a suit for declaration and claims decree over the 'B' Schedule property.
The proposed amendment if allowed to stand it will absolutely change the nature and character of the suit. The plaintiff appears to have claimed his right by virtue of an agreement dt. 30.10.03. The suit is filed on 6.4.05. The facts and terms and conditions of the impugned agreement was very much within the knowledge of the plaintiff at the time of filing the suit. Despite that the plaintiff remained silent about the said agreement.
It is not the case that despite exercising due diligence the plaintiff could not put in the said facts in the pleadings.
The amendment appears to be not necessary to determine the real question in controversy.
Ld. Advocate for the plaintiff referred to the decision of 1996(III) CHN 23 wherein it is decided that an amendment can be made even at the stage of appeal. The decision does not apply because it bears an CPC 1908 and not after the amendment secondly the facts are completely different.
Ld. Counsel also referred to another decision wherein Hon'ble Apex Court held in 2004(2) WBLR (SC) 530 that there is no limitation for filing amendment petition. The said decision as referred by the ld. Counsel does not apply inasmuch as here the petition is not hit by limitation but it does not fulfil the essential prerequisites for granting the amendment petition.
Ld. Counsel also referred to another decision of the Hon'ble Supreme Court being reported in 2006(2) WBLR (SC) 18. It is relied there that taking note of subsequent events, if permissible. Merits of amendment is not be adjudged during allowing the amendment.
The decision has got no application were became the facts of amendment is leased on an agreement of 2 to 3 which the plaintiff was full knowledge during the filing of the suit in 2005.
In view of the aforesaid discussions and observations made therein I am of the view that the amendment petition is devoid of any merit and does not deserve to be allowed. Hence, it is,
Ordered
that the amendment petition of the plaintiff under Order 6 Rule 17 CPC dt. 4.4.07 is rejected on contest without cost.
To 17.8.07 for issue & hearing injunction."
5. It appears' from the records that the cause of action giving rise to the institution of the suit, as it unfolds from the plaint, is in respect of the defendants' endeavour to change the nature and character of the ground floor of the suit property by attempting to convert it into a garage parking place for automobiles, despite the specific terms and conditions under clause 5 of an agreement dated 30th October, 200
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