In Re: Sm. Taradevi Churiwalla

Susanta Chatterjee, J.—The present revisional application challenging the order dated 19-12-87 passed by the learned Munsif, 3rd Additional Court, at Alipore in Title Suit No. 69 of 84 is considered along with another revisional application challenging the order of the same date passed by the same court in title suit no. 68 of 84. Both the suits are being heard analogously in the court below.r Sm. Taradevi Churiwalla is the plaintiff in Title Suit No. 40 of 82 being renumbered a 68 of 84 being renumbered as Title Suit No. 69 of 84. Both the suits are pending in the 3rd Additional Court of Munsif at Alipore. In the earlier suit Sm. Taradevi Churiwalla as plaintiff has sought for declaration of title and permanent injunction and other reliefs claiming, inter alia, that she has acquired a tenancy right under the provisions of W. B. Premises Tenancy Act. The second suit has been filed by Sm. Sitadevi Chowdhury for recovery of possession after the efflux of the period of lease granted by Sm. Sitadevi Chowdhury in favour of Sm. Taradevi Churiwalla. It is an admitted case that a deed of lease dated 13th February, 1961 has been executed by and between the parties for a lease of 21 years. While a notice to quit was given by the lessor to the lessee, the lessee as plaintiff (sic)as filed a (sic)f claiming tenancy to be governed under W. B. Premises Tenancy Act and for other reliefs as stated in the plaint of title suit no. 68 of 84. Both the aforesaid suits were taken up for peremptory hearing and he evidence has been adduced by the parties.. The matter came to this Court from time to time and there was specific a direction to expedite trial of both the suits.'' After closure of the evidences, an application for amendment of plaint in title suit no. 68 of 84 and simultaneously an application for amendment of the written statement has been filed in Title Suit No. 69 of 84 by Sm. Taradevi Churiwalla. Learned court below has considered both the applications and by the impugned orders dismissed the said applications. Feeling aggrieved, the petitioner has come to this Court in revision, challenging the order of refusal of the prayer for amendment of the plaint as well as amendment of the written statement in title suit nos. 68 of 1984 and 69 of 84, respectively. Having gone through the pleadings of the parties and the proposed prayer for amendment of plaint, it appears that the petitioner who is plaintiff in a suit claiming tenancy right to be governed under W. B. Premises Tenancy Act and being defendant to contest the suit after the efflux of the period of lease has sought to amend the pleadings alleging, inter alia, that before the deed of lease, the tenancy in favour of the petitioner has started on the basis of a receipt receiving an advance amount and the deed of lease is a mere paper transaction. It is claimed by the proposed amendment that the tenancy has really started prior to the execution of the deed of lease and the tenancy is governed by W. B. Premises Tenancy Act and as such the tenancy in question is de hors the deed of lease dated 13th February, 1961.

Considering the submissions of both sides and considering the documents of the case and the stage where the proceeding has reached, the learned Court below has refused the prayer for amendment of the plaint as well as the prayer for amendment of the written statement in the two suits where the petitioner is the plaintiff in one suit and the defendant in the other.

In support of the revisional application, Mr. Roychowdhury along with Mr. S. Mukherjee made elaborate submissions that without looking to the antecedents of the case or any step taken by the petitioner to prolong the litigation the court below should have considered the proposed amendment to find out as to whether by the proposed amendment there is likelihood of any change of nature and character of the pleadings. It is strongly argued that there should be proper appreciation as to amendment of the written statement giving it a liberal view where a party is permitted to make out even inconsistent plea and make contradictory statement. Further it is strongly submitted that the original receipt was not properly appreciated at an earlier stage and upon discovery of such document it is absolutely material to amend the pleading such an amendment would not be prejudicial to the interest of the other side. Apart from other considerations, it would be comprehensively adjudicated and there is no bar to allow the amendment as proposed. In support of his contention Mr. Roychowdhury has referred to a decision reported in AIR 1969 SC 1267 (Jai Jai Ram Monohar Lal v. National Building Material Supply). It has been found by the Hon''ble Supreme Court that rules of procedure are intended to be the handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, in advertance or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and however old the proposed amendment, the amendment may be allowed if it is found that can be made without injustice to the other side. Mr. Roychowdhury has further stressed the point by referring to another decision reported in AIR 1983 SC P 462 (Panchdeo Narayan Srivastava v. Rumari Jyoti Sahay & Anr.). The scope of Section 115 of the CPC and Order 6. R.17 CPC were considered by observing that even an admission made by the party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. Furthermore, another decision was cited from the Bar in favour of the case of the petitioner reported in 1984(1) SCC P. 688 (Haridas Ail Das Thadani & Ors. v. Godrej Rustam Kermani). It was found in the said decision that the Court should be extremely liberal in granting prayer of amendment of pleadings unless serious injustice and any irreparable loss is caused to the otherside. A revision court ought not to lightly interfere with a discretion exercised in allowing amendment in the absence of cogent reasons or compelling circumstances. The test for allowing the amendment is to find whether the proposed amendment works in serious injustice to the other side. In the said case the District Judge allowed the amendment and the High Court interfered with the same and it was observed by the Hon''ble Supreme Court that a revision court, ought not to lightly interfere with a discretion exercised in allowing amendment in the absence of cogent reasons to compelling circumstances.

Mr. Tarun Chatterjee, learned Advocate appearing for the O.P./Landlord/Lessor opposed the revisional application. He has drawn the attention of this court to the entire background of the case and, in particular, pointing out that after the expiry of the deed of lease and after the issuance of the notice to quit, the petitioner filed a suit to forestall the suit for recovery of possession claiming a right of tenancy wherein she has clearly admitted the execution of the deed of lease and obtaining delivery of possession pursuant to the said deed of lease. After the filing of the suit for recovery of possession of the lessor/O.P. a clear defence was filed admitting the deed of lease where it was claimed inter alia, that the deed of lease was a sham document and there was an understanding and/or arrangement of holding over after the expiry of the deed of lease. The defendant/tenant/ lessee tried to delay the disposal of both the suits by putting various obstructions and attempts were made to oppose the process of the court. The matter came to this Hon''ble Court from time to time and there was a direction for early disposal of the suits within specific period. Thereafter, for recording deposition on commission, the matter was delayed indefinitely and after the exhaustion of the evidences the petitioner with an ulterior motive to create unnecessary complication and to prejudice the right of the O.P., has filed the petition for amendment of the pleadings which is otherwise unwarranted and uncalled for, He has also referred to the decision reported in AIR 19S3 SC P.462. He has submitted that the said case is quite distinguishable, inasmuch as the Court below allowed a prayer for amendment of the plaint and the High Court sitting in revision interfered with the order and the same was not appreciated by the Hon''ble Supreme Court. ''According to him the proposed amendment will cause prejudice to the interest of the the opposite party and there would be serious injustice if the prayer for amendment is considered and allowed.

Having heard the learned lawyers of both sides in details and after going through the materials on record and perusing the plaint of both the suits and the proposed amendment filed in one suit for speaking amendment of the plaint and in the other suit seeking amendment of the written statement, this court finds that it is true that the prayer for amendment of the plaint should be liberally allowed but there are two yardsticks which should not be lost sight of. One is that the prayer must be bonafide and the other is that the same would not cause any injustice and prejudice to the case of the other side. It is all the more to be looked into Order 6 Rule 17 its of the CPC where it is provided that the court (sic) at any stage of the proceedings allow either party to alter or amend pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of deter(sic)g the real question in controversy between the parties. The court by either invoking the aid of Order 6 Rule 17 CPC or u/s 151 C.P.C. or u/s 153 C.P.C. cannot allow the amendment of any pleading unless the conscience of the court is satisfied that such an amendment is necessary for the purpose of determining the real question in controversy between the parties. Here, in the instant case, there is admittedly a deed of lease between the parties. After the efflux of the period of lease a party (sic) sought to recover possession. The other party has contested the suit by filing the defence and independently filed another suit where the execution the deed of lease was not disputed and a specific stand was taken that possesion was obtained by virtue of the deed of lease. The parties went to trial. They adduced full evidence and they have admitted the position in terms of the pleadings. Now, finding difficulty at the time of adjudication of the case, if any party wants to amend the pleadings in order Co take further opportunity to nullify the evidence and to bring on record further facts to change the dimension of the case, this court does not find that in such a case the court should be liberal in allowing the amendment. Any liberal view of granting an indulgence would cause serious injustice and prejudice to the case of the other side. This Hon''ble High Court in several decisions and the Hon''ble Supreme Court have from time to time indicated, inter alia, that the amendments may be granted but in no case, there should be prejudice to the other side-and an injustice being done to the case of the other side. From this angle of vision this Court is satisfied that by the proposed amendment of the plaint and by amendment of written statement an attempt is being made to change the colour of the litigation to the greatest prejudice and interest of the other side. Hence this court is not inclined to interfere with the impugned orders and both the revisional applications are rejected without any order as to costs.