Aloke Ranjan Roy vs Tapan Kumar Ghosh

R.K. Bag, J.—This revisional application under Article 227 of the Constitution of India at the instance of the added defendant No. 8 of the suit arises out of order dated 03.04.2013 passed by the learned Civil Judge (Senior Division), 5th Court, Alipore in Title Suit No. 96 of 2008, by which learned Judge of the court below allowed the application for amendment of plaint filed by the Opposite Party No. 4/plaintiff of the suit.

It appears from the materials on record that the opposite party nos. 1 to 3 filed Title Suit No. 96 of 2008 against the opposite party nos. 5 to 10 for partition, declaration and permanent injunction on 02-12-2011. The opposite party No. 4 was transposed from the category of defendant as plaintiff No. 1 in the suit. On 27-01-2012 the opposite party No. 4/plaintiff No. 1 filed an application for amendment of the plaint under Order 6 Rule 17 of the Code of Civil Procedure. It is also admitted position that issues were framed and the suit was fixed for peremptory hearing on the date of filing of application for amendment by the opposite party No. 4. The Trial Court allowed the application for amendment of plaint by passing the impugned order on 03-04-2013, which is under challenge in this revision.

Mr. Satyajit Talukdar, learned counsel appearing on behalf of the petitioner submits that the application for amendment of the plaint was filed by the opposite party No. 4 after commencement of trial of the suit and as such the said application for amendment cannot be allowed by the learned court below. Mr. Talukdar has relied on the decision of "Vidyabai And Others V. Padmalatha And Another" reported in (2009) 2 Supreme Court Cases 409 and the case of "Ajendraprasadji N. Pandey And Another V. Swami Keshavprakeshdasji N. And Others" reported in (2006) 12 Supreme Court Cases 1 in support of his above contention. Mr. Talukdar has also relied on the order passed by learned Single Judge on 13-09-2012 in C.O. No. 3110 of 2008 in support of his above contention. The further submission of Mr. Talukdar is that there is no averment in the application for amendment of the plaint that the opposite party No. 4 could not have raised the matter for amendment before commencement of trial in spite of due diligence and as such the order passed by learned Judge of the court below is not sustainable in law.

On the other hand, Mr. Hiranmoy Bhattacharya, learned counsel appearing on behalf of the contesting opposite parties submits that the trial of the suit did not commence at the time of filing of the application for amendment of the plaint. Mr. Bhattacharya has relied on the decision of our High Court in the case of Sayed Ali Mallick and Others Vs. Ramjan Ali and Others, in support of his above contention. The further contention of Mr. Bhattacharya is that the opposite party No. 4 was transposed from category of defendant to the category of plaintiff only on 02-12-2011 and as such the opposite party No. 4 could not have raised the matter before the court below in spite of due diligence before 02-12-2011. For the purpose of proper appreciation of the rival contentions made by learned counsel of both parties, it is relevant to quote the amended provisions of Order 6 Rule 17 of the Code of Civil Procedure, which is as follows:

"R. 17. Amendment of Pleadings-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

On perusal of the above amended provision of Order 6 Rule 17 of the CPC it appears that the court shall not allow any application for amendment of the pleading after commencement of the trial, unless the court comes to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of trial. The proposition of law laid down by the Supreme Court in paragraph 60 of the decision of Ajendraprasadji N. Pande and Another Vs. Swami Keshavprakeshdasji N. and Others, is that the trial is deemed to commence when the issues are settled and the case is set down for recording of evidence. It is held by the Supreme Court in paragraph 11 of the decision of Vidyabai and Others Vs. Padmalatha and Another, is that the date on which the issues are framed is the date of first hearing and filing of an affidavit in lieu of examination-in-chief of witness would amount to commencement of the proceeding. The unreported decision of our High Court in C.O. No. 3110 of 2008 on 13.09.2012 indicates that the trial commences after framing of issues and fixing of the date of recoding of evidence. The proposition of law in the case of Sayed Ali Mallick and Others Vs. Ramjan Ali and Others, is that the term "commencement of trial" ought to be given a restrictive meaning so as to regulate the amendment of pleadings from the stage when the case is set for recording evidence and not prior to the same when the dates are fixed for inspection of documents and/or for complying with other preliminary steps to the commencement of the trial. On consideration of the above decisions cited from the Bar it appears that the commencement of trial starts after framing of the issues and setting down the case for recording of evidence. In the instant case the issues have been framed and the suit is fixed for peremptory hearing. Even assuming for argument''s sake that the trial commenced in the instant suit, the opposite party No. 4 can still make amendment of the plaint if the court comes to the conclusion that in spite of due diligence the opposite party No. 4 could not have raised the matter before commencement of the trial. I have already observed that the opposite party No. 4 was transposed from the category of the defendant to the category of plaintiff only on 02-12-2011, though the suit was instituted in the year 2008. Since the application for amendment of the plaint was filed by the opposite party No. 4 before the trial court on 27-01-2012, the court can very well come to the conclusion that in spite of due diligence the opposite party No. 4 could not have raised the matter before commencement of trial. The argument advanced on behalf of the petitioner that there is no averment in the application for amendment of the plaint to the effect that the opposite party No. 4 could not make amendment before commencement of trial in spite of due diligence on his part cannot have any bearing for consideration whether application for amendment will be allowed or rejected, because the court will have to come to the conclusion that in spite of due diligence the party could not have raised the matter before commencement of trial. In the instant case the opposite party No. 4 got the opportunity to become plaintiff No. 1 only on 02-12-2011 and the application for amendment of the plaint was filed on 27-01-2012 and as such I am of the view that the opposite party No. 4 could not file the application for amendment of the plaint before commencement of trial in spite of due diligence on his part. The logical inference is that the application for amendment of the plaint filed by the opposite party No. 4 on 27-01-2012 is not barred by the proviso to Rule 17 of Order 6 of the CPC as contended on behalf of the petitioner.

The next contention of Mr. Talukdar is that the instant amendment of the plaint is not necessary because the other plaintiffs-on-record have already pleaded necessary averments in the plaint. On the other hand, Mr. Bhattacharya has urged this Court to consider the contents of the application for amendment and the schedule of amendment of the plaint to advance the argument that the amendment was necessary for the purpose of adjudication of the dispute involved in the suit. On consideration of the contents of the copy of application for amendment and the schedule of amendment of the plaint, I am of the view that the amendment is necessary to establish the case made out by the plaintiffs in the plaint.

Mr. Talukdar has contended that the opposite party No. 4 challenged the deed dated 28-07-2008 as fake, voidable and manufactured document and the plaintiffs including the opposite party No. 4 prayed for declaration to that effect in the plaint. According to Mr. Talukdar, the deed was executed in the year 2008 and the application for amendment is filed on 27-01-2012 and as such the said application for amendment is barred under Article 56 of the Limitation Act, 1963. Mr. Talukdar has also relied on the decision of the Supreme Court in the case of T.N. Alloy Foundry Co. Ltd. Vs. T.N. Electricity Board and Others, wherein the Supreme Court has laid down in paragraph 2 that the Court would decline to allow the amendment, if a fresh suit on the amended claim would be barred by limitation on the date of filing of the application for amendment. In this reported case the Supreme Court has also observed that this factor of limitation is to be taken into account in exercise of the discretion whether amendment should be ordered and does not affect the power of the court to order for amendment. In this regard Mr. Bhattacharya has relied on the decision of the Supreme Court in the case of Ragu Thilak D. John Vs. S. Rayappan and Others, wherein the Apex Court has laid down in paragraph 6 that the dominant purpose to allow the amendment is to minimize the litigation. It is held by the Supreme Court that where the plea of limitation is disputed the same can be adjudicated by the court after allowing the amendment prayed for. In the said reported case the Supreme Court held that the plea that the relief sought by way of amendment was barred by time is arguable in the circumstances of the case as is evident from the perusal of averments made in the plaint which was sought to be incorporated by way of amendment. In view of the proposition of law laid down by the Apex Court and in view of the fact that the present suit is not only a suit for declaration and permanent injunction but also for partition and also the fact that limitation will be counted from the date when the right to sue first accrued, I am of the view that the plea of limitation raised on behalf of the petitioner is arguable and as such the trial court should frame an issue on the point of limitation after allowing the instant application for amendment of the plaint. In view of my above findings I am unable to accept the contention made on the issue of limitation on behalf of the petitioner.

The last contention of Mr. Talukdar is that there is want of bona fide on the part of the opposite party No. 4 in praying for amendment of the plaint, because the other original plaintiffs of the suit are the relatives of the opposite party No. 4 and the opposite party No. 4 was not transposed from the category of defendant to the category of plaintiff from the year 2008 till 02-12-2011 intentionally. On the other hand, Mr. Bhattacharya has submitted that the application for amendment of the plaint is made bona fide on the part of the opposite party No. 4 who got the opportunity to amend the plaint only after being transposed from the category of defendant to the category of plaintiff on 02-12-2011. Under the facts and circumstances of the present case, I cannot persuade myself to hold that there is want of bona fide on the part of the opposite party No. 4 in praying for amendment of the plaint on 27-01-2012 after being transposed as plaintiff No. 1 in the suit on 02-12-2011.

Having heard the learned counsel representing the respective parties and on consideration of the materials on record, I am also of the opinion that the petitioner will not be prejudiced for allowing the application for amendment of the plaint, because the petitioner being added defendant No. 8 of the suit, will get opportunity to file additional written statement to refute and repudiate the averments made by the opposite party No. 4 by way of amendment of the plaint. In view of my above findings, the impugned order dated 03.04.2013 passed by the learned Civil Judge (Senior Division), 5th Court, Alipore in Title Suit No. 96 of 2008 is hereby affirmed. The contesting opposite parties will file amended plaint before the trial court within a period of four weeks from the date of this order. The petitioner is at liberty to file additional written statement before the trial court within a period of eight weeks from the date of this order.

With these observations, the revisional application is disposed of.

Let a copy of this judgment and order be sent down to the trial court for favour of information and necessary action.

Urgent certified photostat copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.