Kashi Nath Das vs Ram Bilas Rajak

Indrajit Chatterjee, J.—1. I am hearing this application under Article 227 of the Constitution of India wherein the present petitioner who is the appellant in Title Appeal No. 61 of 2010 now pending before the court of learned Civil Judge (Senior Division) Additional Court, Hooghly. In the present petition, the order No. 40 dated 11-04-2013 has been questioned.

The present petition has been filed by the present petitioner/plaintiff against the order of rejection dated 11th April, 2013 vide Order No. 43 as passed in Title Appeal No. 61 of 2010 now pending before the Civil Judge (Senior Division), Additional Court, Hooghly. Before I proceed further, I like to mention subtle fact which will be necessary for the adjudication of this matter.

The present plaintiff/petitioner brought a Title Suit being T.S No. 167 of 2003 which was dismissed by the Civil Judge (Junior Division), 2nd Court at Chandannagore and against the said order of dismissal, Title Appeal No. 61 of 2010 was preferred.

This lis, which has come before this Court, has arisen out of the order dated 11-04-2013 in which the said learned First Appellate Court refused to allow the petition of the present petitioner to make amendment of the plaint of under Order 6 Rule 17, the facts which was partially not known to him before the filing of the that appeal. The present application was filed on 18-06-2013 and that T.A. No. 61 of 2010 was filed sometime in the year 2010. Another suit, being Title Suit No. 27 of 2009, was also filed by the present petitioner against the present opposite party/defendant for eviction in respect of the adjacent rooms and the present petitioner got a decree in that suit on 17.08.2011.

It is further case of the petitioner that the present opposite party took up the matter with the B.L & L.R.O., Haripal within the district of Hooghly. In that proceeding, the present defendant claimed himself to be the raiyat in respect of the properly of that suit but his claim was rejected by the B.L & L.R.O. This order of the said B.L & L.R.O. was passed on 10th April, 2009. The petitioner/plaintiff has further claimed that he got the certified copy of the said order of rejection only on 15-05-2012. Now, the petitioner wants to incorporate in Appeal No. 61 of 2010 these facts in his pleading that - 1) that the Title Suit No. 27 of 2009 has been decreed against the defendant by judgement dated 17-08-2011 and, 2) that what happened to the proceeding of the B.L & L.R.O.

It was argued by the learned Advocate for the petitioner that- 1) when the present Appeal No. 61 of 2010 was filed these facts were not known to the present petitioner and, 2) that the learned First Appellate Court disposed of the matter in a very cut-short manner and he did not discuss at all the case of the present petitioner or the case of the present opposite party but simply disposed of the case by saying "Considering the present stage of the appeal and the prayer of the appellant for amendment of the plaint of T.S. No. 167 of 2003 is, hereby, considered and rejected".

Learned Advocate took me to the petition for amendment, which was filed before the learned First Appellate Court a copy of his which is annexure-E of this application (page No. 60). The objection as against this petition has been marked as Annexure-F and is in page-65 and others. He also took me to the order of the B.L & L.R.O. which is marked as annexure-D at pages 57 to 59.

It is the argument of the learned Advocate for the petitioner that amendment is to be allowed in every cases if it does not make out a new case barred by limitation or that it will prejudice the other side seriously. He took me to the relevant provision of the Civil Procedure Code "Order VI Rule 17" which runs thus :

"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".

He cited three decisions of the Hon''ble Apex Court as reported in , (2012) 5 SCC 337 where the Hon''ble Apex Court referred to the judgement of the Rajkumar Gurawara v. S.K. Sarwagi & Co. (P) Ltd. and quoted from paragraph -18 of the said judgement. Which quoted below :

"In Rajkumar Gurawara v. S.K. Sarwagi & Co. (P) Ltd. this Court considered the scope of amendment of pleadings before or after the commencement of the trial. In para 18, this Court held as under : (SCC p.369)

...... It is settled law that the grant of application for amendment be subject to certain conditions, namely, (i) when the nature of it is changed by permitting amendment; (ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party; (iii) when allowing amendment application defeats he law of limitation."

In paragraph 20 the Apex Court framed these factors which may be taken into consideration while dealing with applications for amendment :

"On critically analysing both the English and Indian cases, some basic principles emerge which out to be taken into consideration while allowing or rejecting the application for amendment :

1) whether the amendment sought is imperative for proper and effective adjudication of the case;

2) whether the application for amendment is bona fide or mala fide;

3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with the application filed under Order 6 Rule 17. These are only illustrative and no exhaustive."

And it is clear that while deciding the application for amendment ordinarily the court must not refuse bona fide, legitimate, honest and necessary amendments and should never permit mala fide and dishonest amendments. The purpose and object of Order 6 Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the courts while deciding such prayers should not adopt a hypertechnical approach. Liberal approach should be the general rule, particularly in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleading to avoid multiplicity of litigations.

Learned Advocate also cited a decision of the Hon''ble Apex Court as reported in , (2010) 13 SCC 427 in paragraph-40 wherein also the Apex Court discussed regarding the principle which all the courts must follow and it was further directed in that judgement that a Judge or a quasi-judicial authority must speak out in the order as to the reason of passing such order. This decision has been relied upon by the petitioner.

Learned Advocate also cited another decision of the Hon''ble Apex Court as reported in , (2000) 1 SCC 712 wherein the Apex Court observed that :

"All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defence taken. ............Proposed amendment should not cause prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time."

It is submitted by Mr. Sengupta, learned Advocate, appearing on behalf of the present opposite party that the amendment sought for will show the dishonest intention of the present petitioner. He submitted that the Title Suit No. 167 of 2003 was decreed on 02-02-2010 and the Title Suit No. 61 of 2010 was filed in the year 2010. The Title Suit No. 61 of 2010 arose as against the Title Suit No. 167 of 2003.

It was further argued by learned Advocate appearing on behalf of the opposite party that when the B.L. & L.R.O. passed the order, the petitioner was definitely aware regarding the order. As per the said order of the B.L. & L.R.O. this court can very well find from the page 62 of the petition that he was present. He further submitted that the present petitioner got the certified copy of that order on 15.5.2012 on the very date of the application and as such, the authority concerned was not at fault for this. Thus he submitted that the petitioner has not come in clean hand while filing the amendment petition before the learned court. In the same breath, learned Advocate argued that at least on 10.11.2009 the petitioner had the knowledge about the judgment and decree dated 02-02-2010 in T.S. No. 167 of 2003.

He further submitted that T.S. No. 163 of 2003l relates to a particular property and the schedule of land which went before the B.L. &. L.R.O. has no connection with the said landed property which is the scheduled property of T.S. No. 167 of 2003, thereby he submitted that there is no reason to allow the ''Kha'' schedule of the amendment petition as it has no relevance to the schedule of the T.S. No. 167 of 2003.

He also took me to the Order 6 Rule 17 of the Code of Civil Procedure to show that the amendment petition will be allowed only if it is proved that the party praying as such was diligent in applying before the court and he must come with a clean hand.

He cited a decision of this Hon''ble Court as reported in , AIR 1996 Cal 81 in paragraphs 5 and 6 wherein this Hon''ble Court asserted that thus for the reason of the delay and that too, with no explanation offered for the same it would not be just and proper to allow the amendment as sought for at the stage of the appeal and that the Apex Court also said in paragraph 6 of the judgement that the approach on behalf of the Plaintiff/Appellant cannot be considered to be bona fide one and, if that is taken into account in the light of the deliberate neglect to introduce such amendment at the stage of the Trial, it has got to be hold that there was an element of mala fide therein.

It was further argued, it has been submitted by learned Advocate appearing on behalf of the petitioner that when the decree was passed in Title Suit No. 27 of 1993 on l7-8-2011 and the Title Suit No. 167 of 2003 was disposed of on 02-02-2010. There was no question of taking help of the judgement and decree of T.S. 167 of 2003 in Title Suit No. 27 of 2009. He further submitted regarding ''Kha'' schedule of the amendment petition as filed before the first appellant court that the order of B.L. & L.R.O. is dated 11-10-2009 and the Title Suit No. 167 of 2003 was dismissed just within 40 days of the dismissal of the Title Suit No. 167 of 2013. It was a submission of the learned Advocate that the petition for amendment was filed before learned trial court only on 29-8-2012 which is just three months of obtaining the certified copy and as such, it cannot be claimed that the present petitioner took up dilatory tactics to the prejudice of the other side.

It is submitted by the learned Advocate appearing on behalf of the opposite party that this Court can very well supplement the order passed by the learned Trial Court if the situation so demands. On this point, he cited the Single Bench decision of this Court as reported in , AIR 2003 Cal 68.

He further submitted that the decision of the Hon''ble Apex Court as reported in (, 2010 13 SCC 427 will not apply in the present case as the said decision was with regard to some administrative or quasi-judicial proceeding and here, it is not so. He also took me to the decision of this Court as reported in AIR 196 Cal 81 wherein the Court held that even at the time of disposal of one amendment petition, the Court must see whether there was delay in filing the application. He also cited the decision of the Hon''ble Apex Court as reported in , (2009) 10 SCC 84 in paragraphs 63 and 64 wherein the Apex Court has given one formula which the courts below will take into consideration. These considerations are - 1) whether the amendment sought is imperative for proper and effective adjudication of the case; 2) whether the application for amendment is bona fide or mala fide; 3) the amendment should not cause such prejudice to the other side; 4) refusing amendment would in fact lead to injustice; 5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and 6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

The same principle I have taken into consideration while noting the argument of the learned Advocate appearing on behalf of the petitioner which can be found in paragraph 4 of the present judgment.

Thus, it is apparent that the present petitioner was aware of the result of the proceeding before the B.L & L.R.O. but he did not incorporate the result of the proceeding while filing the appeal before the first appellate court. The petitioner of this case got the certified copy of the order of the B.L & L.R.O on 15.05.2012. Thus, the petitioner could have taken this fact in T.A No. 61 of 2010 at the time of filing of the appeal. The fact reveals that the T.S No. 27 of 2009 (32 of 2009) was decreed against the present petitioner on 17.08.2011 and the present petitioner could have taken that fact.

Thus, regarding the amendment of the said petition this court is of the opinion that the petitioner being aware of such proceeding ought to have amended the plaint earlier as the said case before the B.L. & L.R.O was disposed of on contest as per order dated 10.11.2009. The petitioner cannot get rid of all these rigors by filing a document in which he prayed for certified copy vide Page No. 59 and that is dated 15.05.2012 and the certified copy was supplied on that very date. That date cannot be treated as the date of knowledge in respect of the amendment of the ''Kha'' schedule as prayed for in the petition under Order 6 Rule 17 of the C.P.C. It is settled principle of law that whoever will approach the court for some relief must come in clean hand. Here in the instant case before this court, this petitioner has not come with clean hand and he suppressed a material fact that he did not know about the proceeding before the B.L & L.R.O, Haripal. Thus, the proposed amendment as mentioned in ''Kha'' schedule of the petition (copy of which is in page No. 62 - 63 of the petition) cannot be allowed in view of the discussion so long made.

Now as regards the proposed amendment as prayed for by the present petitioner (Page 62 of the petition) to include in the plaint of Title Suit No. 167 of 2003 the fact that he got a decree as against the present opposite party in respect of some other property as disposed of by the Civil Judge, Junior Division, Additional Court, Chandernagore, as per judgment dated 17.08.2011 for which one Title Execution Case No. 7/2011 is pending, also cannot be allowed as even though the plot number of both the suits are same but the cause of action was separate including the areas involved in both the cases. The Title Suit No. 27 of 2009 (32 of 2009) was disposed of as per judgment dated 17.08.2011 and the present amendment petition was filed on 29.08.2012 (as per the order of the court below) as the Title Appeal was filed before the Civil Judge, Senior Division, Hooghly, must be in the year 2010. This Court has not been apprised regarding the date of filing of the appeal. The existence of that Title Suit No. 32 of 2009 was very much known to the present petitioner and he could have amended the plaint of Title No. 167 of 2003 by inserting therein the fact as regards the institution of Title Suit No. 32 of 2009 by him.

Apart from all these it is not necessary to amend the plaint of T.S NO. 167 of 2003 just to incorporate the existence of subsequent suit and that the present petitioner got a decree in that suit. Thus, according to me the amendment petition as filed by the present petitioner on 29.08.2012 which has been dismissed by the learned trial court ought not to have been filed to give more flavour in that title suit. The fact that in Title Suit No. 32 of 2009 the petitioner has got a decree may influence the learned Court of Appeal.

Thus, this court is satisfied that the application under Order 6 Rule 17 was rightly dismissed and this court affirms the impugned order dated 11.04.2013. The office is directed to communicate the order to the Civil Judge, Senior Division Additional Court, Hooghly at Chinsurah.

Urgent certified copy be given to the party as per rules.

Thus, this application under Article 227 of the Constitution of India is thus dismissed without costs.