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IN THE HIGH COURT OF CALCUTTA
Subrata Talukdar, J.
M/s. Kwality Ice Cream India Ltd. - Petitioner
Versus
Smt. Kalpana Sadhkhan & Ors. - Opposite Parties
C.O. 1936 of 2014
Decided On : 23-09-2015
AMENDMENT OF WRITTEN STATEMENT - DELAY AND LACK OF DILIGENCE - SUBLETTING - RELATIONSHIP OF LANDLORD AND TENANT - COMPANIES ACT, 1956, SECTION 43(1-A) - ORDER 6, RULE 17 CPC - ORDER 41, RULE 27 CPC - Any amendment that would necessitate a retrial of the entire case on a new basis at a late stage cannot be permitted. The defendant's failure to exercise due diligence by not producing documentary evidence at the appropriate time, despite having ample opportunity, constitutes dilatory conduct. The defendant's attempt to amend the written statement after the trial's conclusion and the decree's issuance is an impermissible afterthought. The documents claimed to have been discovered later are readily accessible and could have been obtained earlier with due diligence.
Fact of the Case:
The petitioner, defendant no.2 in an ejectment suit, challenged the appellate court's order rejecting his application to amend the written statement and introduce additional evidence. The suit was filed on the grounds of subletting and default by the defendant no.1, who was the recorded tenant of the suit premises. The defendant no.2 claimed to be the successor-in-interest of the defendant no.1 and sought to amend the written statement to reflect this change. The appellate court rejected the amendment application, holding that the defendant no.2 had failed to exercise due diligence in obtaining the necessary documentary evidence at the appropriate stage.
Finding of the Court:
The court held that the defendant no.2's attempt to amend the written statement at a late stage, after the trial's conclusion and the decree's issuance, was an impermissible afterthought. The court found that the defendant no.2 had failed to exercise due diligence by not producing the documentary evidence at the appropriate time, despite having ample opportunity to do so. The court also held that the documents claimed to have been discovered later were readily accessible and could have been obtained earlier with due diligence.
Issues: 1. Whether the defendant no.2 could be allowed to amend the written statement at a late stage to reflect the change in its name and constitution. 2. Whether the defendant no.2 had exercised due diligence in obtaining the necessary documentary evidence to support its claim of being the successor-in-interest of the defendant no.1.
Ratio Decidendi: 1. The court held that an amendment to the written statement cannot be allowed after the trial has commenced unless the court concludes that the party could not have raised the matter before the commencement of the trial despite due diligence. 2. The court held that the defendant no.2 had failed to demonstrate that it had exercised due diligence in obtaining the necessary documentary evidence to support its claim of being the successor-in-interest of the defendant no.1. The court found that the documents claimed to have been discovered later were readily accessible and could have been obtained earlier with due diligence.
Final Decision: The court dismissed the defendant no.2's revision petition, upholding the appellate court's order rejecting the amendment application.
Subrata Talukdar, J.
In this application the petitioner challenges the Order No. 18 dated 29th May, 2014 passed by the Ld. 6th Additional District Court at Alipore in Ejectment Appeal No. 36 of 2012 arising out of Ejectment Suit No. 68 of 2006.
2. The petitioner is the defendant no.2 in the suit. The opposite parties are the plaintiffs. The ejectment suit has been filed in respect of the properties of which ownership is being claimed by the plaintiff's present OPs being Premises No. 2/1, Gariahat Road (now known as Leela Roy Sarani), P.S. Ballygunge under Ward No. 68 of Kolkata Municipal Corporation (hereinafter referred to for short as the suit premises).
3. The suit was instituted impleading the defendant nos. 1 and 2 being M/s. Kwality Ice Cream (Pvt. Ltd.) and M/s. Kwality Ice Cream (India) Ltd. respectively on the ground that the predecessor-in-interest of the plaintiffs-present OPs had inducted the defendant no.1 as a monthly tenant in the suit premises. That the defendant no.1 is no more in enjoyment of the suit premises and it is further alleged by the plaintiffs that the defendant no.2 is in possession thereof without any formal attornment in favour of the plaintiffs.
4. The suit was also instituted on the ground that the defendant no.1 as the recorded tenant did not tender any rent in favour of the landlord being the predecessor-in-interest of the present OPs. It was also, inter alia, pleaded in the plaint that the notice of ejectment sent to the registered address of the defendant no.1 has come back unserved. In the meantime the plaintiffs-present OPs have also come to learn of the fact that the defendant no.1 has wound up its business from the suit premises and is now merged with a company by a different name. Therefore, the defendant no.1 is no more doing any business from the suit premises. However, to avoid all future complications the defendant no.2 has been impleaded and the notice of ejectment has been received by the defendant no.2, who is contesting the suit.
5. Therefore, on the grounds of both subletting and default a decree for eviction of the defendants from the suit premises was prayed for along with a decree for damages by way of mense profits.
6. Sri Saptangshu Basu, Ld. Senior Counsel appearing for the present petitioner-defendant no.2 draws the attention of this Court to the written statement filed on behalf of the defendant no.2 in the suit. Paragraph 6 of the written statement reads as follows:-
"That with reference to the Paragraph 6 of the plaint the defendant states that the name of the company changed due to legal formalities, necessitated by turnover of the company under Section 43 (1-A) of the Companies (amendment) Act. By virtue of this word "profit" was deleted before the word (Limited) in the name of the company".
7. Sri Basu further submits that although the above facts were pleaded at Paragraph 6 of the written statement (supra) the change of the nomenclature of the defendant no.1 to the defendant no.2 could not be supported by documentary evidence at the stage of trial. It could not be therefore proved on the basis of documentary evidence before the Ld. Trial Court that in effect the defendant no.2 is the same entity as the defendant no.1 although there has been a conversion in the name and the pattern of its constitution.
8. Sri Basu further submits that after the suit was decreed in favour of the plaintiffs-present OPs on 18th September, 2012, sometime around 2014 at the appellate stage the petitioner-defendant no.2 after a strenuous search could locate the necessary documentary evidence in support of the fact that the defendant no.2 is an entity which has stepped into the shoes of the defendant no.1 and, therefore could not be considered to be a distinct and/or separate entity thereby rendering the plaintiffs-present OPs ineligible to receive a decree on the ground of subletting or default.
9. The defendant no.2 challenged the decree in the suit by filing Ejectment Appeal No. 36 of 2
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