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2018 Supreme(Cal) 445
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SABYASACHI BHATTACHARYYA, J.
Md. Shahnawaz Khan and another - Appellant
Versus
Shaik Shajahan Hossain and others - Respondent
C.O. No. 2787 of 2017
Decided on : 29-08-2018
Advocate Appeared:
For the Petitioners: Mr. Rudradeb Choudhuri
For the Respondent: Mr. Anup Kumar Mukhopadhyay, Mr. Tapas Kumar Manna, Mr. Iswar Chandra Sharma
Headnote:
ORDER VI RULE 17 OF THE CODE OF CIVIL PROCEDURE - AMENDMENT OF PLAINT - SUBSTITUTION OF CAUSE OF ACTION - CHANGE IN THE NATURE AND CHARACTER OF THE SUIT - ORDER II RULE 2 OF THE CODE OF CIVIL PROCEDURE - LEAVE TO SUE FOR RELIEF - DIFFERENT CAUSE OF ACTION - VEXATIOUS AND MALA FIDE SUIT - REJECTION OF PLAINT - ARTICLE 227 OF THE CONSTITUTION OF INDIA - JUDICIAL REVIEW.
Fact of the Case:
The plaintiffs filed a suit for declaration that they are entitled to get back the suit property on making refund of premium of sub-lease to the defendants besides their right to re-enter and right of taking re-possession in the case of sooner determination on forfeiture of lease or on the expiry of lease. The defendants challenged the order allowing an application under Order VI Rule 17 of the Code of Civil Procedure, filed by the plaintiffs/opposite parties for amendment of their plaint.
Finding of the Court:
The court held that the proposed amendment would change the very premise of the suit and the entire nature and character thereof. The original suit was apparently not maintainable, being based on some vague entitlement to get back the suit property on making refund of premium of sublease to the defendants, by virtue of the amendment, such cardinal error in the basic frame of the suit was sought to be rectified by converting the same to be a regular eviction suit on the basis of the notice dated January 24, 2015, which was now sought to be made out as a quit notice, ex facie contrary to the pleadings in the original plaint as to its nature.
Issues: Whether the amendment of plaint sought by the plaintiffs/opposite parties, as allowed by the trial court, would alter the basic framework, nature and character of the suit and substitute an entirely new cause of action for the bundle of facts leading to the suit, as framed, in the original plaint.
Ratio Decidendi: The court held that the amendment would frustrate the basic tenets of justice, more so since the well-settled juristic view is stricter in case of amendment of plaints than written statements. The proposed amendment, in the present case, would substitute the notice dated January 24, 2015 as the cause of action in place of the original vague entitlement to re-enter possession upon payment of the sub-lease premium amount. That would change the entire subject matter of the suit even apart from substituting the cause of action, since a mere declaration as to re-entry on the basis of refund of an amount was sought to be replaced by eviction on an entirely different notice.
Final Decision: The court allowed the revision petition, set aside the impugned order, and dismissed the application filed by the plaintiffs/opposite parties for amendment of the plaint in the suit.
SABYASACHI BHATTACHARYYA, J.
1. By the impugned order, the trial court allowed an application under Order VI Rule 17 of the Code of Civil Procedure, filed by the plaintiffs/opposite parties for amendment of their plaint. The defendants/petitioners have challenged the said order in the present revision.
2. The suit was filed originally for declaration that plaintiffs “are entitled to get back the suit property on making refund of premium of sub-lease to the defendants besides their right to re-enter and right of taking re-possession in the case of sooner determination on forfeiture of lease or on the expiry of lease” and for ancillary reliefs.
3. Learned senior counsel for the petitioners argues that by virtue of the proposed amendment, the plaintiffs/opposite parties sought to change the nature and character of the suit completely. Whereas originally the suit was for declaration asserting the plaintiffs’ alleged entitlement “to get back the suit property on making refund of premium of sub-lease to the defendants besides their right to re-enter and right of taking repossession in the case of sooner determination on forfeiture of lease or on the expiry of lease”, now the plaintiffs were attempting to introduce a prayer for recovery of possession on the basis of a purported notice dated January 24, 2015. This, according to learned counsel for the petitioners, amounted to a substantial change in the nature and character of the suit.
4. On this count, learned counsel cites a judgment of the Supreme Court reported at (2008) 13 SCC 658 [Bharat Karsondas Thakkar v. Kiran Construction Co.]. The relevant paragraphs of the said judgment, in this context, are as follows:
“26. Having carefully considered the submissions made on behalf of the respective parties, and the decisions cited on their behalf, we are of the view that the Division Bench of the High Court erred in law in allowing the amendment of the plaint sought for by Respondent 1 herein as the plaintiff in the suit.
27. Even if the bar of limitation is not taken into account, the plaintiff, namely, Respondent 1 herein, is faced with the ominous question as to whether the amendment of the pleadings could have at all been allowed by the High Court since it completely changed the nature and character of the suit from being a suit for specific performance of an agreement to one for declaration of title and possession followed by a prayer for specific performance of an agreement of sale entered into between its assignee and the vendors of the assignees.
28. Along with that is the other question, which very often raises its head in suits for specific performance, that is, whether a stranger to an agreement for sale can be added as a party in a suit for specific performance of an agreement for sale in view of Section 15 of the Specific Relief Act, 1963. The relevant provision of Section 15 with which we are concerned is contained in clause (a) thereof and entitles any party to the contract to seek specific performance of such contract. Admittedly, the appellant herein is a third party to the agreement and does not, therefore, fall within the category of “parties to the agreement”. The appellant also does not come within the ambit of Section 19 of the said Act, which provides for relief against parties and persons claiming under them by subsequent title. This aspect of the matter has been dealt with in detail in Kasturi case [(2005) 6 SCC 733]. While holding that the scope of a suit for specific performance could not be enlarged to convert the same into a suit for title and possession, Their Lordships observed that a third party or a stranger to the contract could not be added so as to convert a suit of one character into a suit of a different character.
29. In the instant case, the appellant obtained the consent decree on the strength of an agreement said to have been entered into between the Vaitys and K.L. Danani who brought the said agreement to the partnership which was formed by
