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2016 Supreme(Cal) 425
IN THE HIGH COURT AT CALCUTTA
Siddhartha Chattopadhyay, J.
Sk. Akbar Ali
Vs.
Biswajit Karmakar, being deceased represented by his heirs and heiresses, Smt. Gayatri Ghosh & 4 Ors. – Respondents
C.O. No. 2143 of 2013
Decided on : 28-09-2016.
Advocate Appeared:
For the Petitioner: Mr. Tanmoy Mukherjee, Mr. Raghunath Das, Mr. Hiranmoy Bhattacharya, Mr. Atanu Chakraborty.
For the Opposite Party : Mr. Mrinal Kanti Das, Sr. Adv., Mr. Somnath Roy Chowdhury, Mr. Haradhan Banerjee, Mr. Amitava Pain, Mr. P.P. Mukherjee, Mr. Subhrangshu Dutta.
The court has the discretion to allow amendment of pleadings at any stage of the proceedings in the interests of justice, even if the amendment affects the court's jurisdiction to further try the suit.
Headnote:
AMENDMENT OF PLAINT - LIMITATION - SPECIFIC PERFORMANCE OF CONTRACT - CIVIL PROCEDURE CODE, 1908 - ORDER VI RULE 17 - The court allowed the amendment of the plaint, which sought to incorporate a prayer for specific performance of contract, despite the bar of limitation, as it was necessary to resolve the real controversy between the parties and the amendment did not cause prejudice to the other side which could not be compensated adequately in terms of money.
Fact of the Case:
The plaintiff filed a suit for permanent injunction restraining the defendants from transferring or encumbering the suit property. The plaintiff also sought to amend the plaint to incorporate a prayer for specific performance of contract. The trial court rejected the amendment on the ground of limitation.
Finding of the Court:
The court held that the amendment was necessary to resolve the real controversy between the parties and that it did not cause prejudice to the other side which could not be compensated adequately in terms of money. The court also held that refusing the amendment would lead to injustice or multiple litigation.
Issues: 1. Whether the amendment of the plaint was barred by limitation? 2. Whether the amendment was necessary to resolve the real controversy between the parties? 3. Whether the amendment caused prejudice to the other side which could not be compensated adequately in terms of money?
Ratio Decidendi: The court relied on the following principles while allowing the amendment: 1. The purpose of amendment of pleadings is to provide advance notice to the other side as to the plea, which the amendment seekers may take up during the trial. 2. The court should see the basic principles which would be the guiding factors while allowing or rejecting the application for amendment: - Whether the amendment sought is imperative for proper and effective adjudication of the case? - Whether the application for amendment is bona fide or mala fide? - The amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money. - Refusing amendment would in fact lead to injustice or lead to multiple litigation. - Whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case? - As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. 3. The court should adopt a liberal approach while deciding applications for amendment, particularly in cases where the other side can be compensated with the costs.
Final Decision: The court allowed the amendment of the plaint with a cost of Rs.5,000/- to be paid by the petitioner to the opposite party No. 2.
Calling in question the legal pregnability of the order dated 30.05.2013 passed by the learned Civil Judge (Junior Division) 5th Court at Howrah in Title Suit No. 118 of 2006, the plaintiff/petitioner has sought for the amendment of the plaint on the ground that the learned Trial Court failed to exercise its jurisdiction and failed to consider that to resolve the real controversy in the suit it was necessary. Learned Trial Court also lost sight of the fact that in the original plaint he had taken the leave under Order II Rule 2 of the C.P.C. The main grievance is such without adhering to the factual aspects followed by legal principles the learned Trial Court rejected the amendment only on the ground of limitation. According to him, the principal/opposite party (since deceased) at the time of filing written statement admitted that there was an agreement between the principal-defendant/opposite party and the present plaintiff/petitioner to the effect that the principal-defendant/opposite party would execute the sale deed in his favour. Therefore, by way of proposed amendment he is not trying to insert any new cause of action. In his plaint also he has categorically stated that there was an agreement between him and the principal-defendant/opposite party for selling the suit property to him and a substantial part of consideration has been paid by him to the principal-defendant/opposite party. After the death of the principal-defendant/opposite party, his predecessors stepped into the shoes of the principal-defendant/opposite party but they are reluctant to execute the sale deed in terms of the agreement to sale. He further contended that if the aforesaid factual aspects were considered by the learned Court below in its proper perspectives in that case he would succeed in getting a favourable order from the Trial Court.
2. Learned Counsel appearing on behalf of the successors of the principal-defendant/opposite party submits that there was no such agreement by and between them and they are not willing to execute and register the deed of conveyance in favour of the plaintiff in respect of the said property. According to the plaintiff/petitioner, had to seek for an amendment and to incorporate the said averment in the schedule of amendment. He has also wanted to incorporate in the prayer portion i.e. a decree for specific performance of contract against the substituted defendant No. 1 (series).
3. The present petitioner/plaintiff has also come up with another fact that a suit has been filed by one Purnima Dutta in connection with the same suit property and the said suit was filed against Biswajit Karmakar (principal-defendant/opposite party) for a declaration that she is the absolute owner of the property as described in the schedule of that plaint and the principal-defendant i.e. Biswajit Karmakar (since deceased) had no manner of right, title and interest in respect of the property in question. In the said suit the plaintiff Purnima Dutta clearly averred that the defendant (present defendant Biswajit Karmakar since deceased) had already transferred his right, title and interest in the suit property in favour of her, in the year 1977 and therefore, the defendant lost all his right, title and interest. After coming to know about the said fact the present petitioner has filed the present Title Suit bearing No. 118 of 2006 claiming for a decree for permanent injunction restraining the present opposite party from transferring or encumbering or making over possession of the suit property to anybody else in any manner whatsoever. Thereafter, the present petitioner has filed an application under Order I Rule 10 (2) of C.P.C. in connection with Title Suit No. 13/2003. The said prayer was rejected by the Trial Court in Title Suit No. 13/2003. Against that order, the present petitioner has filed a revisional application bearing C.O. 4067 of 2012 before a Co-ordinate Bench and the revisional application was dispose
