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2019 Supreme(Cal) 172
IN THE HIGH COURT OF CALCUTTA
SABYASACHI BHATTACHARYYA, J.
State of West Bengal Represented By Secretary, Department of Fisheries and Another - Appellant
Versus
Bansilal Leisure Parks Ltd and Another - Respondent
Civil Order No. 4171 of 2018
Decided On : 10-01-2019
Abhratosh Majumder, Adv., M.d. T.M. Siddiqui, Adv., Ayan Banerjee, Adv., Nilotpal Chatterjee, Adv., Debashree Dhamali, Adv., Saktinath Mukherjee, Adv., Amiya Narayan Mukherjee, Adv.
The Supreme Court's order granting liberty for an amendment was prospective and did not restrict the plaintiff from filing further necessary amendments. The trial court was justified in allowing the second amendment application on its merits, and objections to the amendment could be addressed during the hearing of the suit.
Headnote:
amendment - suit for declaration and permanent injunction - Code of Civil Procedure, 1908 - Section 151 - [M/s Bayer India Ltd. and others vs. State of Maharashtra and others, (1993) 3 SCC 29 ], [Bharat Earth Movers vs. Commissioner of Income Tax, Karnata, (2000) 6 SCC 645 ]
Fact of the Case:
The defendants filed a revisional application against the order of the trial court allowing an application for amendment of plaint taken out by the plaintiff. The reliefs originally claimed in the suit were for declaration and permanent injunction. The plaintiff made an application for amendment of plaint, narrating subsequent events, including the factum of issuance of a notice and alleging that the plaintiff was still in possession of the suit property. The defendants appealed against the order of injunction, which was allowed, and the plaintiff was allegedly prevented from accessing the suit property. The plaintiff filed a revisional application, which was allowed, directing the trial judge to reconsider the application for restoration of possession. The trial court allowed the application for restoration of possession, giving rise to a challenge by the defendants.
Finding of the Court:
The court found that the plaintiff was entitled to file a second amendment application despite having availed the benefit of the liberty granted by the Supreme Court for the first amendment. The court also held that the trial court acted within its jurisdiction in allowing the second amendment application on its merits. The court dismissed the revisional application, affirming the impugned order.
Issues: Whether the plaintiff could file a second amendment application after availing the benefit of the liberty granted by the Supreme Court for the first amendment. Whether the trial court acted without jurisdiction in allowing the second amendment application on its merits.
Ratio Decidendi: The Supreme Court's order granting liberty for an amendment was prospective and did not restrict the plaintiff from filing further necessary amendments. The trial court was justified in allowing the second amendment application on its merits, and objections to the amendment could be addressed during the hearing of the suit.
Final Decision: The court dismissed the revisional application, affirming the impugned order.
SABYASACHI BHATTACHARYYA, J.
1. The present revisional application has been preferred by the defendants in a suit for declaration and permanent injunction, against an order whereby the trial court allowed an application for amendment of plaint taken out by the plaintiff/opposite party no. 1.
2. The reliefs originally claimed in the suit were as follows:
"(a) A decree of declaration that the plaintiff company has every legal right or authority to run the business over the property in suit.
(b) An order of permanent injunction may be passed against the defendants, and/or their men and agents restraining them from disturbing the plaintiff's peaceful possession over the suit property and/or from running the plaintiff's business over the same and/or from causing any disturbance or hindrance hampering the plaintiff's business over the suit property and/or from causing any demolition work within the suit property by the defendants and/or from changing the nature and character of the property in suit.
(c) For all Costs of the suit.
(d) Any other relief or reliefs the plaintiff in law and equity is entitled to get."
3. After institution of the suit on April 20, 2013, the defendants issued a notice to the plaintiff/opposite party no. 1 on April 23, 2013, thereby asking the plaintiff to remove all its structures and belongings from the suit property within a period of seven days, further alleging that the property had been handed over to the Assistant Director of Fisheries, North 24 Parganas on April 22, 2013 and purportedly cancelling the licence agreement between the parties dated September 23, 1998 in terms of clause (3) thereof.
4. On May 14, 2013, the plaintiff made an application for amendment of plaint, narrating subsequent events, including the factum of issuance of the said notice and also alleging that the plaintiff was still in possession of the suit property.
5. By virtue of the said amendment, the plaintiff further sought to introduce the following additional reliefs:
"(aa), Declaration that the purported notice dated 23rd April, 2013 and 2nd May, 2013 issued by the defendant No. 1 and the Memo No. 778-Fish/122-Secy/Fish dated 10th April, 2013 issued by the defendant No. 2 and the purported notice dated 29th April, 2013 referred to therein are malafide, arbitrary, unreasonable and illegal, null and void, unconstitutional and not binding on the plaintiff;
(bb), The notice dated 23rd April, 2013 and 2nd May, 2013 issued by the defendant No. 1 being Annexure "F" hereto and the Memo No. 778-Fish/122-Secy/Fish dated 10th April 2013 issued by the defendant No. 2 referred to therein malafide, illegal, arbitrary and void declared, and be delivered up and ordered to be cancelled.
(ba) Declaration that clause 3 of the agreement dated 23rd September, 1998 has been superseded by and/or rendered nugatory by the subsequent tripartite contract between the plaintiff and the defendants dated 15th December, 2010;
(bb) Mandatory injunction directing the plaintiff to forthwith execute and caused to be registered a deed of lease in respect of the suit property in favour of the plaintiff on the terms as recorded in the agreement dated 23rd September, 1998 to the extent not in consistent with the terms of the agreement dated 15th December, 2010;
(bc) Declaration that the purported clause 3 contained in the said Agreement dated 23rd September, 1998 is illegal, void and unconstitutional;
(dd) Order of temporary injunction as well as ad-interim injunction in terms of prayer (b) of the plaint."
6. Meanwhile, the opposite party no. 1 filed a writ petition, bearing W.P. No. 12681 (W) of 2013, against the said notice dated April 23, 2013, which was dismissed by a co-ordinate bench on April 30, 2013 in view of the opposite party no. 1 already having approached the civil court. A challenge was preferred against the said order, which resulted in an observation by the division bench taking up the appeal, directing the trial court to decide upon an injunction appli
