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IN THE HIGH COURT OF CALCUTTA
Siddhartha Chattopadhyay, J.
Basanti Devi Shaw & Ors. - Petitioners
Vs.
Chandra Prakash Gupta & Ors. – Opposite Parties
C.O. No. 3198 of 2015
Decided On : 15.02.2016
AMENDMENT OF PLAINT - TENANCY SUIT - ORDER VI RULE 17 CPC - AMENDMENT OF PLAINT - TENANCY SUIT - ORDER VI RULE 17 CPC - WHETHER THE COURT BELOW ERRED IN ALLOWING THE AMENDMENT OF THE PLAINT AND INJUNCTION APPLICATION WITHOUT CONSIDERING THE FACT THAT THE PLAINTIFF HAD FILED A PREVIOUS SUIT FOR PARTITION IN RESPECT OF THE SAME PROPERTY WHICH WAS DISMISSED ON CONTEST.
Fact of the Case:
The plaintiff filed a suit for declaration of tenancy right over a property. The defendant filed an application under Order VI Rule 17 CPC seeking amendment of the plaint and injunction application. The Court allowed the amendment. The defendant challenged the order of the Court below contending that the amendment was not necessary for determining the real question in controversy and that the plaintiff had suppressed the fact that he had filed a previous suit for partition in respect of the same property which was dismissed on contest.
Finding of the Court:
The Court held that the amendment sought by the plaintiff was not necessary for determining the real question in controversy and that the plaintiff had suppressed the fact that he had filed a previous suit for partition in respect of the same property which was dismissed on contest. The Court further held that the amendment was not bonafide and that the plaintiff had tried to change the part of the holding according to his own sweet will without serving copy upon the other side.
Issues: 1. Whether the amendment sought by the plaintiff was necessary for determining the real question in controversy? 2. Whether the plaintiff had suppressed the fact that he had filed a previous suit for partition in respect of the same property which was dismissed on contest? 3. Whether the amendment was bonafide?
Ratio Decidendi: 1. The Court held that the amendment sought by the plaintiff was not necessary for determining the real question in controversy as the plaintiff had already filed a previous suit for partition in respect of the same property which was dismissed on contest. 2. The Court held that the plaintiff had suppressed the fact that he had filed a previous suit for partition in respect of the same property which was dismissed on contest. 3. The Court held that the amendment was not bonafide as the plaintiff had tried to change the part of the holding according to his own sweet will without serving copy upon the other side.
Final Decision: The Court set aside the order of the Court below allowing the amendment of the plaint and injunction application.
Siddhartha Chattopadhyay, J.
Doubting the correctness of the impugned order dated 15.05.2015 passed by the learned Civil Judge, (Senior Division), 1st Court, Howrah in Title Suit No. 215 of 2015 the defendant/petitioner has come before this Court on the ground that the learned Court below failed to appreciate that by allowing the application for amendment, the opposite party/plaintiff Nos. 1 and 2 wanted to get the injunction order extended on the newly added suit property. According to him, no copy of such applications were served upon him. He contended that initially the plaint was filed claiming relief in respect of Plot No. 233 Belilious Road, Howrah-1. Ad interim injunction order was also passed relating to that suit property and thereafter amendment has been sought for in respect of Plot No. 233/10 instead of Plot No. 233 so far as plaint and injunction application is concerned. But the opposite party/plaintiff with an ulterior motive did not mention in the plaint of Title Suit No. 215 of 2015 that he had filed another suit bearing Title Suit No. 194 of 2010 showing the suit property as 233/6, Belilious Road, P.S.-Bantra .In such circumstances he has prayed for setting aside the impugned order.
2. To come to a finding factual aspects of this instant suit needs to be restated. Sieving doubt unnecessary details, the opposite party/plaintiff’s case in a capsulated form is such that ‘A’ Schedule Property is a thika land and defendant No. 6 was there as a thika tenant in respect of ‘B’ Schedule Property. The defendant No. 6 inducted the present plaintiff as premises tenant relating to the tenanted portion at a monthly rental of Rs. 3,000 per month payable according to the English Calendar month. The plaintiff and the proforma defendant have been running their business at the ‘A’ Schedule Property i.e. 233 Belilious Road, Howrah-1 under the name and style of M/s. Shows Steel (Sales) India and also at the ‘B’ Schedule Property i.e. 233/6 Belilious Road, Howrah-1 under name and style of Om SteelIndia. They have their Trade Licence, Tenancy Agreement, professional tax, I/T file which would show that they have been running their business in ‘A’ Schedule Property Plot No. 233 Belilious Road and ‘B’ Schedule Property Plot No. 233/6 of Belilious Road. The defendant in collusion with others attempted to grab the plaintiff’s tenanted portion and for which they filed the suit for a declaration claiming that they have acquired valid tenancy right over ‘A’ and ‘B’ Schedule Property and has also prayed for permanent injunction restraining the defendant from making any attempt to take possession of the ‘A’ and ‘B’ Schedule Property.
3. After filing of that suit (bearing Title Suit No. 215 of 2015) the opposite party/plaintiff got an ad interim order of injunction in respect of ‘A’ and ‘B’ Schedule Property i.e. 233 Belilious Road and 233/6 Belilious Road, Howrah-1. After that, they have filed an amendment application and this time they wanted to amend the schedule contending inter alia that the holding No. 233 Belilious Road under P.S.-Bantra has been renumbered as holding No. 233/10 of Belilious Road. The learned Court below allowed that amendment and as a result amendment of injunction application was also made. Initially the injunction order was granted in respect of 233 Belilious Road, Howrah and now by virtue of amendment this has become 233/10 Belilious Road, P.S.-Bantra. After such petitions were allowed the plaintiff, filed an application under Section 151 of CPC and prayed for police help and that was also allowed by the learned Court below. Everything has been done within a month from the date of filing of this title suit. While disposing of the ad interim injunction application opposite party/plaintiff was directed to comply with Order 39 Rule 3(a) of the CPC and fixed the date 06.06.2015 for service return and acknowledgement due. There is compliance of Order 39 Rule 3(a) CPC. Be it mentioned, that amendment application
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