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2012 Supreme(Gau) 981
GAUHATI HIGH COURT
A.K.Goswami, J.
North Lakhimpur Bengali Association @ Bengali Association @ Natya Mandir -Appellant
Versus
Kamal Kumar Changkakoti and Anr. -Resopndent
CRP No. 115 of 2012
Decided On : 17-08-2012
Mr.T.C. Khetri, Mr. S. Singh , Mr. N. Sarkar for the petitioner.
Mr. K. Agarwal, Mr. M. Dey, Mr. S. G. Bajaj, Mr. D. Hazarika, Mr. M. Chetia , Mr. N. Deka for the respondents.
Headnote:
Constitution of India – Article 227 – Civil Procedure Code, 1908 – Section 115 – Order 6, Rule 17 –Societies Registration Act, 1860 – Development Authority – Suit – Alteration and Amendments – Land measuring plaintiff had constructed a building for purpose of cinema and theatre shows and an agreement was entered on behalf of plaintiff organization with father of present defendant – Late Khagendra Nath Changkakati, leasing to him cinema hall which is described in Schedule B of the plaint agreement was for a period of 20 years or till amount advanced for renovation by father of "present defendant" was fully adjusted/repaid by the organization. He was running cinema shows in the name and style of "Biswa Talkies" and no written agreement was entered into after expiry of agreement – Held, Learned trial court has accepted argument of defendants that the mentioning of application is a lacuna in the plaint and allowing deletion of same along with word and would change contents of plaint court is unable to accept reasoning of learned trial court – Plaintiff has not indicated letter list of documents submitted along with plaint and it appears to court that as a result of not giving due attention mistake had occurred are two different dates it would appear that same was a result of typographical error coupled with error arising out of copying and pasting as stated by petitioner/plaintiff – Deletion of and word and will not in any way change character of the suit and will not in any way cause prejudice to defendants – Petition is partly allowed.
2. Heard Mr. T.C. Khatri, learned senior counsel for the petitioner/ plaintiff. Also heard Mr. K. Agarwal, learned counsel appearing for the respondent/defendant No. 1 and Mr. N. Deka, learned counsel appearing for respondent/defendant No.2.
3. The petitioner/plaintiff had filed Title Suit No. 26 of 2010 for cancellation of Memorandum of Agreement dated 17.3.2007 on being declared void and for recovery of possession of the suit premises and land.
4. The brief facts, as set out, in the plaint are that the plaintiff, which is a Non-Governmental Organization ('NGO'), working for social, cultural and religious betterment of general Bengali people living in the district of Lakhimpur, has been in existence since prior to Independence and was registered in the year 2009-10 under the Societies Registration Act, 1860. The petitioner/plaintiff had purchased, through a registered Deed of Sale, a plot of land on 20.9.1947 measuring in total 1 Bigha, 1 Lecha. 7 Lechas of land covered under Dag No. 175 of Periodic Patta No. 10 is meant for ingress to and egress from 4 Kathas, 14 Lechas. of land in Dag No. 170 of Periodic Patta No. 10. Now the 4 Kathas, 14 Lechas land is covered under Dag No. 224 of Periodic Patta No. 118 of 1st part of North Lakhimpur Town.
5. In the Schedule A land measuring 4 Kathas, 14 Lechas, the plaintiff had constructed a building for the purpose of cinema and theatre shows and on 30.1.1974, an agreement was entered on behalf of the plaintiff organization with the father of the "present defendant", namely. Late Khagendra Nath Changkakati, leasing to him the cinema hall which is described in the Schedule B of the plaint. The agreement was for a period of 20 years or till the amount advanced for renovation by the father of the "present defendant" was fully adjusted/repaid by the organization. He was running cinema shows in the name and style of "Biswa Talkies" and no written agreement was entered into after expiry of the agreement dated 30.1.1974 and Late Khagendra Nath Changkakati continued with the cinema business by paying license fee in an irregular manner. After the death of Mr. Khagendra Nath Changkakati, the youngest of his three sons, the defendant No.1 took charge of Biswa Talkies and started running the said business without any intimation to the plaintiff.
6. Some correspondences were made by the petitioner/plaintiff, details of which are given in paragraphs 5 and 6 of the plaint, with the defendant No.1 and a new agreement was also sought to be entered into with the defendant No.1. Except for the letter dated 5.2.2008, defendant No.1 did not reply to the other letters. On 7.11.2009, the plaintiff noticed that the defendant No.1 had started demolition work on part of the balcony of the hall and started illegal construction of work of permanent nature in front of the building without taking any permission from the plaintiff. The request of the plaintiff to stop the work was not heeded by the defendant No.1, consequent where upon the matter being brought to the notice of the North Lakhimpur Development Authority, a show cause notice dated 12.11.2009 was issued to the defendant No.1 for such unauthorized construction without taking any permission and on receiving such notice, the defendant No. 1 stopped the construction. The matter was also brought to the notice of the Deputy Commissioner, Lakhimpur on 13.11.2009 by some members and office bearers of the plaintiff and at the initiative of the Deputy Commissioner, Lakhimpur, a meeting was held on 4.12.2009 in which the def
