Md. Bozlur Rahaman vs Sk. Dhan Mia And Others

Sabyasachi Bhattacharyya, J.

The present revisional applications have been filed respectively against two parts of the same order dated November 21, 2017, whereby an

application for amendment of written statement filed by the defendants/opposite party nos. 1 and 2 was allowed and another application filed by

certain strangers to the suit under Order I Rule 10 of the Code of Civil Procedure was also allowed consequentially.

The revisional applications arise from a suit for declaration, injunction and partition in respect of an immovable property. In the said suit, the

defendants/opposite party nos. 1 and 2 took a stand that the suit plot, (described to be of 42 satak in area in the plaint schedule) originally belonged to

the father of the defendant no. 1, namely Sk. Abdur Rashid, who, while having title and possession over the same, wanted to make heba of the same

in favour of his two sons, that is, the proforma defendant and defendant no. 1, who agreed to accept the said heba and accordingly, the said Sk. Abdur

Rashid transferred the suit property in their favour vide registered deed of heba dated October 5, 1972, being No. 6568 and delivered possession

thereof and that since then the defendant no. 1 and his brother became owners and possessors of the same.

It was further stated in the original written statement that while the defendant no. 1 and his brother remained in ejmal possession over the suit

property, they effected amicable partition of the same and the brothers got separate and distinct portions of the same and each began to possesses his

own allotted portion exclusively, without having any connection with the other.

It was further stated in the original written statement that the brother of the defendant, namely, Chand Mian, proforma defendant in the suit,

transferred his 8 annas share in favour of the plaintiff, who has been possessing the distinct portion of the suit property which was under possession of

Chand Mian and as such there was/is no jointness of possession of the said Chand Mian, as well as plaintiff and the defendants and as such the

plaintiff has got no right to file the present suit.

Subsequently, by the amendment application, the defendants/opposite party nos. 1 and 2 inter alia sought to introduce the pleading that Sk. Abdur

Rashid, the father of defendant no. 1, transferred only 40 cents out of the suit property by way of heba in favour of his two sons.

The defendants further sought to introduce that as per records of rights, the area of the suit plot is 42 cents but “in locality†as per mouza map,

the area of the suit plot is available as 46 cents. It was further introduced that after the aforesaid transfer of 40 cents by the said Sk. Abdur Rashid, he

retained the remaining portion of the suit plot till his death and on his demise, the same devolved upon his two sons, that is, Chand Md. @ Chand Mian

and Dhan Md. @ Dhan Mian, the defendant no. 1, along with his three daughters, namely, Ajiman, Majidan and Khateman who jointly inherited the

same according to Mahomedan faraz, out of whom Majidan died “bachelorâ€, and her share devolved upon the other brothers and sisters. Ajiman

died leaving behind her four sons and Khateman has been residing at Khagragar, PS and District: East Burdwan. Those sons of Ajiman and

Khateman were pleaded as necessary parties to the suit in the amendment. The Trial Court allowed such amendment by the impugned order.

By a separate application under Order I Rule 10 of the Code of Civil Procedure, the alleged heirs of the daughters of Sk. Abur Rashid sought to

implead themselves as defendants in the suit. Such application was also allowed by the impugned order, apparently as a corollary of allowing the

amendment application.

Learned senior Advocate appearing for the petitioner argues that the Trial Court acted without jurisdiction in allowing the belated amendment after

closure of evidence of the plaintiff’s witness. Such amendment, according to learned senior Advocate, was barred by the proviso to Order VI

Rule 17 of the amended Code of Civil Procedure, which reads as follows:

“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 trialâ€​.

In view of the absence of any explanation for such delay in filing the amendment application, the Trial Court ought to have rejected the prayer for

amendment. -

It was further submitted on behalf of the petitioner that, by virtue of the amendment, the defendants are now trying to withdraw the admission

made in the original written statement, that two sons of Sk. Abdur Rashid were exclusive owners of the suit property. By virtue of the amendment, the

admitted area of the suit property was sought to be altered and daughters of Sk. Abdur Rashid were sought to be introduced as cosharers to the suit

property. Such withdrawal of admission could not be permitted under Order VI Rule 17 of the Code of Civil Procedure.

The next submission advanced on behalf of the petitioner is that, by virtue of the amendment, a partition suit is being sought to be converted to a

suit for declaration of title of the heirs of the daughters of Sk. Abdur Rashid, which is not permissible in law.

This apart, since Sk. Abdur Rashid admittedly died long back in 1972, his succession opened upon such death and furnished the defendants with a

cause of action for ascertaining the title of the daughters of Sk. Abdur Rashid. Since even the defendants are on the footing of plaintiffs in a partition

suit, the defendants are now virtually seeking declaration of the title of such daughters and their heirs long after expiry of the limitation period of three

years from -the opening of succession of Sk. Abdur Rashid. Such claim was palpably barred by limitation and, as such, ought to be nipped in the bud by

rejecting the amendment application.

Learned senior advocate for the petitioner cites a judgment reported at AIR 2012 Cal 237 [Smr. Jayasri Guha (Nee Ghosh) vs. Smt. Sukla Ghosh],

where a coordinate Bench of this Court held that the party seeking amendment after the commencement of trial has to satisfy that in spite of due

diligence he could not raise the matter before the commencement of trial.

In another judgment, cited on behalf of the petitioner and reported at (2012) 2 SCC 300 [J. Samuel and others vs. Gattu Mahesh and others], the

Hon’ble Supreme Court held that unless the Court satisfies itself that there is a reasonable cause for allowing the amendment, filed at the stage of

trial, normally the Court has to reject such a request.

Learned senior Advocate next cites a judgment reported at (2012) 11 SCC 341[Abdul Rehman and another vs. Mohd. Ruldu and others], wherein

the Hon’ble Supreme Court inter alia held that the proviso to the amended Order VI Rule 17 of the Code of Civil Procedure to some extent

curtails absolute discretion to allow amendment at any stage. If the amendment application is filed after commencement of trial, it has to be shown

that in spite of due diligence, it could not have been filed earlier. The object of the rule, as held by the Hon’ble Supreme Court, is that Courts

should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real

question in controversy between the parties, provided it does not cause injustice or prejudice to the other side. However, it was also held that the main

purpose of allowing amendment is to minimize litigation. This apart, a judgment reported at AIR 2005 Himachal Pradesh 21 [Jeet Ram Kishore and

others vs. Sunder Singh] was also cited on behalf of th-e petitioner, wherein a learned Single Judge held that amendment of pleadings cannot be

allowed after trial has commenced, in particular after the plaintiff’s evidence was closed.

Learned senior advocate appearing for the petitioner further argues that since the amendment application itself ought to have been rejected in the

present case, the consequential impleadment of alleged coowners has also to be rejected as redundant.

In controverting such arguments, learned counsel for the defendants/opposite party nos. 1 and 2 argues that the proposed amendment would not

change the character of the defence, nor would amount to withdrawal of any admission. It is submitted that the defendants do not want to delete any

portion of the existing defence pleadings but only want to furnish details in addition to the original pleadings, within the periphery of the original written

statement.

It is submitted that the proposed amendment only seeks to introduce that a portion of the suit property was transferred by Sk. Abdur Rashid,

without seeking to substantially alter the area of the suit property.

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Learned counsel further submits that it is well settled that in a partition suit, all the joint properties have to be brought within the hotchpot of the suit

and all the coowners are to be impleaded, otherwise the partition suit would fail.

Changing m-inor details about the area of the suit property, transferred by Sk. Abdur Rashid, and impleading all the remaini-ng coowners, could not

entail rejection of the amendment application.

It is further submitted on behalf of the defendants/opposite party nos. 1 and 2 that, in view of the amendment, it would be necessary to add the

heirs of the coowner and sisters in order to have a complete adjudication of the partition suit, since it is well settled that no coowner in respect of the

suit property could be left out as parties in a partition suit.

Learned counsel for opposite party nos. 1 and 2 cites a judgment reported at (2007) 6 SCC 167 [Andhra Bank vs. ABN Amro Bank N.V. and

others], where it was held that, while allowing an amendment application, the Court cannot go into the question of merit of such amendment and could

only consider whether such amendment would be necessary for a decision on the real controversy between the parties.

Learned counsel further cites a judgment reported at (2008) 3 SCC 717 [Usha Devi vs. Rijwan Ahamd and others], wherein it was held inter alia

that merits of the amendment could not be considered at the time of hearing an amendment application and that the necessity of the amendment for

bringing to the fore the real question in controversy between the parties was a relevant consideration while allowing amendments.

As such, learned counsel for the opposite party nos. 1 and 2 concludes that the prayer for amendment and addition of party were rightly allowed

by the Trial Court.

It is made clear that in view of the nature of the present dispute, this Court heard the matter despite the proforma defendant/opposite party no. 3

remaining unrepresented in the present revisional applications.

A perusal of the application for amendment shows that the only explanation for the same being filed at a belated stage, even after closure of the

plaintiff’s witness, was that the defendants could not disclose to their lawyer every aspect regarding the suit property, which were detected at

such belated stage, when the defendants were advised to incorporate the same in the written statement and that otherwise the partition suit would

suffer from many complications in future and the decree which might be passed therein would be frustrated.

Such explanation is completely insufficient to meet the criteria set by the proviso in the amended provisions of Rule 17 of Order VI of the Code of

Civil Procedure. If the said explanation was accepted to be sufficient for satisfying the proviso, the proviso would lose all meaning and ought to be

erased from the statute book. The logic of such explanation would apply to almost every case and in no case could the proviso be applied to refuse

amendment. As such, the proposed amendment ought to have been declined on such score alone.

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As regards withdrawal of admission, it is evident that although the defendants do not seek deletion of any paragraph or averment in the original

written statement, the introduction of the amendment would itself operate as a negation of the averment made in the original written statement. The

defendant clearly seek to achieve in an oblique move what they could not ach-ieve directly, namely, to change the entire area of the plot transferred by

Sk. Abdur Rashid to an area lesser than that originally admitted and thereby to introduce the existence of cosharers in the said property, who never

found place in the original written statement. As such, the clear admission in the original written statement as to Sk. Abdur Rashid having transferred

the entire suit plot, described as having an area of 42 satak in the plaint, was sought to be obliterated by introducing the averment that only a portion

thereof was transferred, leaving the rest to be joint properties, having other cosharers than the said two sons of Sk. Abdur Rashid.

Moreover, the introduction of the mouza map showing the area available to be 46 cents was merely a ruse in aid of the aforesaid ploy of the

defendants to change the basis of the defence, since reflection of area of a particular plot in the mouza map could not be an indicator of the title of the

parties, which could only be fixed by the heba, as admitted in the original written statement, and other title deeds.

In such view of the matter, the amendment sought by the defendants/opposite party nos. 1 and 2 evidently withdraw an admission made in the

original written statement and is designed at chan-ging the basis of the defence beyond recognition.

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However, the arguments made by the petitioner as to the proposed amendment seeking to change the nature of the partit-ion suit to a declaratory

suit, does not hold good ground. The suit itself involves declaratory reliefs also and, in any event, a partition suit implicitly includes the relief of

declaration of title. Moreover, since no counterclaim has been filed by the defendants, it cannot be argued that the character of the suit itself was

being changed from a partition suit to a declaratory suit. Undoubtedly, if the original defence included the existence of other cosharers, such

cosharers had to be impleaded in the suit, which would not amount to seeking an independent declaration of the title of such cosharers.

As regards limitation, the said argument cannot be accepted to be a valid defence against allowing the application, since the cause of action for the

amendment might not relate back to the date of opening up of succession of the estate of Sk. Abdur Rashid. A partition suit involves continuing cause

of action, which could otherwise entitle the added parties to be impleaded at any stage, unless the defence on the basis of which such impleadment

was sought was itself negated. Even if the question of limitation is kept vague by the amendment, such amendment could not be barred ex facie at the

inception, since such question had to be gone into at the trial of the suit itself as a mixed question of law and fact, only upon allowing the amendment.

Hence, the resistance to the amendment on the ground of limitation cannot also be accepted by this Court.

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However, as discussed above, the order allowing amendment of written statement cannot be sustained on the twofold grounds of non- satisfaction

of the proviso to Order VI Rule 17 of the Code of Civil Procedure and on the ground of withdrawal of admission.

As a necessary consequence, the order adding the alleged coowners as parties to the suit has also to be rejected, since the basis of such addition,

being the amendment of written statement, itself goes and also in view of the application for addition of party having been filed by fence sitters at the

belated stage post closure of the plaintiff’s witness, solely by taking advantage of the proposed amendment.

Accordingly, C.O. No. 4228 of 2017 and C.O. No. 191 of 2018 are allowed on contest, thereby setting aside the impugned order and rejecting the

application for amendment of written statement filed by the defendants/opposite party nos. 1 and 2 as well as rejecting the application for addition of

parties.

There will be no order as to costs.