Nepal Chandra Pramanik vs Dipti Mukherjee

The petitioner who is plaintiff in Title Suit No.359 of 2007 is aggrieved of order dated 29.01.2016 by which amendment in the plaint has not been

permitted by the trial court.

Stand taken by the petitioner is that amendment in the pleadings can be permitted at any stage of the suit, even at the stage of final hearing and

while so, their application for amendment primarily in the prayer clause when admittedly the plaintiffs' evidence is yet to be recorded cannot be

rejected. To support this contention, Sri P.K. Bhawmik, the learned Senior counsel for the petitioner relies on decisions in “Mohinder Kumar Mehra

Vs. Roop Rani Mehra and Others†reported in (2018) 2 SCC 132,in “State of Madhya Pradesh Vs. Nomi Singh and Another†reported in

(2015) 14 SCC 450 and in “Commissioner of Sales Tax, M.P. Vs. Popular Trading Company, Ujjainâ€​ reported in (2000) 5 SCC 511.

Title Suit No.359 of 2007 was instituted for a decree for declaration of the plaintiffs'Â hostile title over the suit land through adverse possession.

The plaintiffs have claimed that the suit scheduled land admeasuring about 356 kathas of land with house thereon originally belonged to Sir R.N.

Mukherjee. After his death this property devolved upon his legal heirs and successors, however, they never came in physical possession over the suit

land. One Sir B.N. Mukherjee who was son of the said Sir R.N. Mukherjee executed a Will in favour of his wife Lady Ranu Priti Mukherjee. The

plaintiffs have claimed that their predecessor came in physical possession of the suit property in the year 1960 and constructed a residential houseÂ

with boundary-wall thereon and they were in uninterrupted physical possession over the entire suit land. It is stated that the said Lady Ranu Priti

Mukherjee died on 15.03.2000; her legal heirs are defendant nos. 1 to 11, and now the defendant nos. 12 to 15 at the instance of some of the

defendant nos. 1 to 11 have started disturbing peaceful possession of the plaintiffs over the suit land. This is the cause of action disclosed by the

plaintiffs for instituting Title Suit No.359 of 2007.

The defendants resisted the suit on the ground that Lady Ranu Priti Mukherjee gave permission to some of the caretakers only to live in a portion

of the suit property and the original owners have, in fact, sold 130 kathas of the suit land to defendant nos.16 and 18 and remaining 110 kathas of land

to defendant no.17. Specific stand taken by the defendant nos. 1,2,3,8,9,12, 13, 14 and 15 is that the suit seeking a declaration of the plaintiffs' hostile

title on the basis of adverse possession is not maintainable and the plaintiffs were never in possession over the suit property.

Before issues were framed in the suit on 01.04.2013, applications for temporary injunction and for appointment of a Pleader Commissioner filed

by the plaintiffs were dismissed. In the meantime, the plaintiffs had filed an application for amendment which was dismissed by order dated

19.01.2010. And, after issues were framed another application for amendment was filed by the plaintiffs which was partly allowed on 24.05.2014. At

this stage the defendant no.17 filed an application under Order VII Rule 11 (d) CPC questioning maintainability of the suit; this application is still

pending. The plaintiffs have now filed application for amendment, a third one, for amendment in paragraph nos. 19 and 37 of the plaint. Through this

amendment application dated 18.01.2016 the plaintiffs seek to amend paragraph nos. 19 and 37 in the following manner:

(i) In the paragraph 19 at page 5 of the plaint the word“cultivating†need be substituted with “cultivating/residential†and the words

“therefore, definitelyâ€​ be substituted with “which possession subsequently turned into hostileâ€​ and

(ii) In the relief portion at paragraph 37 at page 7 of the plaint,the words “title and†appearing in the line 1 of the relief no.(a) be substituted with

word “valid†and the words “continuously since the year 1960†need be inserted after the word “possessionâ€. The words appearing after

“may be declaredâ€​ in line 2 of the said relief no.37(a) need be deleted.

Order VI Rule 17 CPC which permits amendment in the pleadings at any stage of the proceedings is founded on the principles of equity, justice and

good conscience. Order VI Rule 17 CPC provides that the court may permit either party to amend his pleadings at any stage of the proceedings,

however, Rule 17 CPC itself puts a limitation on powers of the court to permit amendment in the pleadings. It provides that if amendment in the

pleadings is necessary for the purpose of determining the real question in controversy between the parties, all amendments in the pleadings can be

permitted on such terms as the court may deem just and proper. After Order VI Rule 17 CPC was amended by Code of Civil Procedure Amendment

Act, 2002 and a proviso was inserted therein further limitation has been put on powers of the court to permit amendment in the pleadings. It provides

that no application for amendment shall be allowed after the trial has commenced and by now it is well-settled that proviso to Order VI Rule 17 CPC

is mandatory. However, proviso to Order VI Rule 17 CPC itself carves out an exception. It provides that if inspite of due diligence the matter could

not have been raised by the parties before the commencement of trial, amendment in the pleadings can be permitted. In “Salem Advocate Bar

Association, T.N. Vs. Union of India†reported in (2005) 6 SCC 344, scope of proviso to Order VI Rule 17 CPC has been discussed by the Supreme

Court in the following words :

26.  ........“The proviso, to some extent, curtails absolute discretion to allow amendment at any stage. Now, if application is filed after

commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to

prevent frivolous applications which are filed to delay the trial. There is no illegality in the provisionâ€​.Â

The plaint averments unerringly disclose that the plaintiffs have raised a claim of their hostile title over the suit scheduled property through adverse

possession. In several paragraphs of the plaint they have asserted that they are in peaceful physical possession over the entire suit land and they have

preferred title over the suit property under the law of adverse possession. Well, it is another issue that they have failed to assert when their adverse

possession had started and when it was perfected by them, in paragraph no. 25 of the plaint they have pleaded thus:

25. That the plaintiffs are genuine, bonafide and valid persons whose possession over the land is also eternal truth therefore, their possession over

the suit land is continuous possession hence, plaintiffs have acquired hostile title and adverse possession over the suit land.

A bare glance at the amendment sought by the plaintiffs would disclose that now they seek a declaration of their continuous possession over the suit

property. The relief now sought by the plaintiffs runs contrary to the plaint averments whereunder they have pleaded adverse possession over the suit

property. Though there is a serious debate on the issue whether trial in the suit commences on framing of issues or when the plaintiff starts

examining his witnesses, assuming that limitation on amendment in the pleadings under proviso to Order VI Rule 17 CPC is not attracted, the fact

that the plaintiffs have yet to examine their witnesses is not a ground to permit the proposed amendment in the plaint.

In the context of the 3rd amendment application which has been dismissed by the trial judge by the impugned order dated 29.01.2016 chronology of

the events in the suit needs to be indicated. First application for injunction was filed by the plaintiffs on 15.12.2007 on the allegation that the defendant

nos. 12 to 15 are trying to disturb their physical possession over the suit land. This application was dismissed by order dated 13.05.2009. Thereafter,

they filed another application for injunction on 24.07.2009 and application under Order XXVI Rule 9 CPC on 16.02.2010. Both these applications were

dismissed by a common order dated 09.08.2010. The aforesaid applications for injunction were dismissed holding that the plaintiffs have failed to

prima-facie establish that they have acquired hostile title by adverse possession. The first application for amendment was filed on 24.07.2009 to

incorporate a new prayer in the relief portion of the plaint, that the judgment and decree in Eviction Title Suit No.23 of 2006 are not binding on the

plaintiffs. This was dismissed by an order dated 19.01.2010. The second amendment petition filed on 19.12.2013 was also for amendment in the

prayer clause. This time they had sought a declaration with respect to sale-deed executed by defendant nos.1 to 11 in favour of defendant nos.17 and

This portion of the proposed amendment was rejected, but amendment to the extent that in para 23 of the plaint defendant nos. 12 to 15 be

deleted and substituted by defendant nos. 17 and 18 was allowed. Finally, when the defendant no.17 raised a plea on maintainability of the suit by filing

an application under Order VII Rule 11(d) CPC the plaintiffs have filed the 3rd amendment petition on the following grounds:

That although the body of the plaint the plaintiffshave categorically stated all the facts in brief but due to some confusing statements inadvertently

made in the plaint, the plaint seems to be a suit for declaration of title only on the basis of adverse possession if the entire pleading is not read over.

And, taking benefit of the same, some of the defendants are now trying to mislead the Learned Court and which also resulted into filing of the instant

application.

That it is settled principle of law that the pleading ofparty should be taken as a whole, based on all the statements made in the same not only by

mere relief sought in the same.

That the default in framing of the plaint could notearlier be detected and it is for the first time pointed out in the application dated 04.04.2015 filed by

the Defendant No.17 and reasonably felt that for making the plaint clear for facilitating proper determination of the real issues involved in the lis, some

amendment/(s) are necessary therefore the instant application for amendment.

It has been held that Order VI Rule 17 CPC consists of two parts; the first part is discretionary whereas the second part is imperative. The

fundamental test whether amendment in the pleadings shall be permitted or not is whether the proposed amendment is necessary for adjudicating real

dispute between the parties. The expression “real question in controversy between the parties†in Rule 17 CPC must be examined in the context

of initial pleadings of the parties. While amendment by way of elaboration or explanation of a fact pleaded in the pleadings can be permitted, an

amendment which would change very foundation and complexion of the case cannot be permitted. It is not that in all cases where other party can be

suitably compensated or before trial in the suit has commenced parties can be permitted to amend their pleadings, it is only such amendment which

shall have a co-relation to the initial pleadings of the parties and which is necessary for adjudicating real question in controversy that can be permitted;

of course subsequent developments, if necessary, also can be incorporated through amendment in the pleadings. In “Ragu Thilak D. John Vs. S.

Rayappanâ€​ reported in (2001) 2 SCC 472 it has been observed that amendment cannot be claimed as a matter of right.

From the stand taken by the plaintiffs in the amendment petition it is apparent that they are trying to amend the foundational facts pleaded in the

plaint. There have been observations by the trial court that the plaintiffs have not been able to establish a prima-facie case that they have acquired

hostile title over the suit land. It is pleaded that there has been series of litigations between the parties and matters arising out of different proceedings

came to this Court several times. Now, on the face of the plaint averments if the proposed amendment is allowed, not only the cause of action and

whole complexion of the suit would change, it would cause serious prejudice to the defendants who have bared their defence by filing written

statement and application under Order VII Rule 11 (d) CPC. The grounds urged by the plaintiffs for amendment in the plaint are frivolous. After so

many applications in the proceedings of the suit plea of inadvertence cannot be accepted.

In the above facts, I am of the opinion that the trial judge has rightly declined to permit amendment in the plaint.

For the reasons indicated hereinabove, in exercise of power conferred under Article 227 of the Constitution of India, I am not inclined to interfere

with the impugned order dated 29.01.2016 and accordingly, this writ petition is dismissed.