2019 Supreme(Cal) 494

IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
BIBEK CHAUDHURI, J.
Puspa Dey & Others - Appellants
Versus
Sukanta Dey & Others - Respondents
F.M.A. No. 1044 of 2016
Decided On : 24-05-2019

The main legal point established in the judgment is the allowance of the application for amendment of plaint, the setting aside of the order permitting the plaintiffs/respondents to implead two transferees in respect of the suit property, and the direction for a local investigation for relayment of the suit property and the property involved in the counterclaim with the deeds of ownership of the parties for a report on specific points.

Headnote:

Title Appeal No.15 of 2015 - Declaration of Title and Permanent Injunction - Section 34 of the Specific Relief Act - Order 6 Rule 17 of the Code of Civil Procedure - Amendment of Plaint - Remand to Trial Court

Fact of the Case:

The predecessor-in-interest of respondent No.1 filed a suit for declaration of title and permanent injunction against the defendants/appellants in the 1st Court of the learned Civil Judge (Junior Division), Barasat. The suit was dismissed on the grounds that the plaintiff failed to pray for recovery of possession of the suit property and relief under Section 34 of the Specific Relief Act is barred under the proviso to the said section. The counterclaim was also dismissed. The plaintiff preferred Title Appeal No.15 of 2014 against the judgment and decree of dismissal of his suit before the 2nd Court of the learned Additional District Judge, Barasat. In course of hearing of the appeal, the plaintiff/appellant filed an application under Order 6 Rule 17 of the Code of Civil Procedure praying for amendment of plaint. The learned Judge, 1st Appellate Court took up the hearing of the application under Order 6 Rule 17 of the Code of Civil Procedure along with the appeal and disposed of the appeal with an order of remand to the learned Trial Judge with a request to rehear the case after allowing the respondents/defendants to file additional statement and then after giving an opportunity to both sides to adduce further evidence if any. The learned Judge in 1st Appellate Court held the counter claim of the defendants-respondents maintainable and directed the learned trial judge to consider the counterclaim on merit, subject to the question of Limitation and cause of action. By way of amendment in course of pendency of the 1st Appeal, the appellant wanted to incorporate certain facts, viz that the original plaintiff by virtue of registered deed being No.3723 dated 22nd May, 1985 purchased remaining 0.1 decimal of land from one Jaynal Abdin Saha. Thus, the original plaintiff became the owner of entire 8 decimal of land by virtue of purchase by two deeds, one in 1987 from the heirs of Anjuman Bibi another in 1985 from the said Jaynal Abdin Saha. The land measuring about 16 decimal which was purchased by the original plaintiff and defendant No.1 was entirely acquisitioned for Megacity project and the defendants have no semblance of interest over the said 16 decimal of land. After filing of the suit and before disposal of the application for temporary injunction, the defendants tired to make some illegal construction over the suit property which was successfully resisted by the plaintiff/appellant. Subsequently, after disposal of the suit, the respondent again started construction work over the suit property despite vehement objection of the plaintiff. In view of subsequent dispossession, the plaintiff made a prayer by way of amendment of plaint for a decree of recovery of possession in respect of the suit property. The plaintiff also wanted to amend the schedule of the suit property by mentioning the boundary of the same.

Finding of the Court:

The learned Judge in 1st Appellate Court while allowing the appeal passed an order of remand and sent the suit back for trial after allowing the application for amendment of plaint filed by the respondents herein with a direction to the learned trial judge to rehear the case after giving an opportunity to both sides to adduce further evidence, if any. The respondent was also permitted to take step for impleadment of the necessary parties to the suit. The order allowing the application for amendment of plaint passed by the learned Judge, 1st Appellate Court is affirmed. The plaintiffs/respondents are permitted to file amended plaint within two weeks from the date of receiving notice from the learned Trial Court of commencement of hearing. The defendants/appellants shall be at liberty to file additional written statement against the amendment plaint within two weeks from the date of receipt of the copy thereof. The order passed by the learned Judge, 1st Appellate Court permitting the plaintiffs/respondents to take step for impleading the aforesaid two persons as parties to the suit is set aside. The parties are permitted to adduce further evidence only on the pleadings relating to alleged dispossession and prayer for recovery of possession claimed by the respondents. The learned trial court shall appoint a survey passed Advocate Commissioner or an Engineer Commissioner for relayment of suit property and the property mentioned in schedule 'X' of the counterclaim with the deeds of ownership of the parties for a report on the following points. Both the appellants and respondents shall bear the cost of local investigation in equal share. The investigation Commissioner shall submit his report within three months from the date of receipt of the writ of commission. The learned trial judge shall dispose of the suit on the basis of evidence and local investigation report within six months from the date of receipt of lower court record.

Issues: The issues in the case revolved around the dismissal of the suit for declaration of title and permanent injunction, the allowance of the application for amendment of plaint, the maintainability of the counterclaim, and the necessity of local investigation for proper adjudication of the dispute.

Ratio Decidendi: The court held that the application for amendment of plaint was allowed, permitting the plaintiffs/respondents to file an amended plaint and the defendants/appellants to file an additional written statement against the amended plaint. The court set aside the order permitting the plaintiffs/respondents to implead two transferees in respect of the suit property. The court also directed a local investigation for relayment of the suit property and the property involved in the counterclaim with the deeds of ownership of the parties for a report on specific points. The court further directed the learned trial judge to dispose of the suit on the basis of evidence and local investigation report within six months from the date of receipt of lower court record.

Final Decision: The order allowing the application for amendment of plaint was affirmed. The order permitting the plaintiffs/respondents to take step for impleading two transferees in respect of the suit property was set aside. The parties were permitted to adduce further evidence only on the pleadings relating to alleged dispossession and prayer for recovery of possession claimed by the respondents. The learned trial court was directed to appoint a survey passed Advocate Commissioner or an Engineer Commissioner for relayment of suit property and the property mentioned in schedule 'X' of the counterclaim with the deeds of ownership of the parties for a report on specific points. Both the appellants and respondents were directed to bear the cost of local investigation in equal share. The investigation Commissioner was to submit his report within three months from the date of receipt of the writ of commission. The learned trial judge was to dispose of the suit on the basis of evidence and local investigation report within six months from the date of receipt of lower court record.