Judgment · High Court · 2012

The petitioner, who is the plaintiff in Title Suit No.61/2006, b [2] y the present application, has challenged the order dated 16th July, 2011 passed in Misc. (J) Case No.35/2010 as well as the order of the even date passed in Mi sc. (J) Case No.36/2010. By the said orders, both passed on 16th July, 2011, th e applications filed in the aforesaid miscellaneous cases were dismissed. [3] The petitioner as plaintiff instituted Title Suit No.61/2006 in the Court of the learned Munsiff No.1 at Tinsukia praying for declaration that t he defendants (present respondents) have no right to occupy and/or trespass into the suit land forcefully and/or no right to interfere with the peaceful occupat ion of the plaintiff over the suit land or any part thereof. The plaintiff in t he plaint, apart from other, has pleaded that they are possessing the suit land for more than 20(twenty) years by paying the lease rent to the proforma defendan t, without any interference from anyone and the defendants though have no right to encroach into the suit land or any part thereof, they are trying to forcibly occupy the said land.

In paragraph 1 of the plaint, it has been pleaded that th e plaintiff is represented by its constituted attorney and Senior Executive Shri Arabinda Saha. The defendants on receipt of the summons entered appearance and filed the written statement in the month of April, 2006 raising the plea of mai ntainability of the suit in the present form, apart from contending that the ori ginal owner of the suit land, namely Sri Sukra Bhumij, son of Late Dukhu Bhumij, sold the land to the defendant No.1, a proprietarilal firm of defendant No.2 an d delivered possession and accordingly they became the owner of the property. [4] When the suit was fixed for the cross-examination of defendants witness, the plaintiffs filed 2(two) applications, one under Order 6 Rule 17 CPC registered and numbered as Misc. (J) Case No.35/2010 and the other under Order 1 Rule 10(2) of the CPC, which has been registered and numbered as Misc.

(J) Cas e No.36/2010. In Misc. Case No.35/2010, the plaintiffs have prayed for implead [5] ment of Sri Bhogeswar Baruah and Sri Sukra Bhumij as party defendants in the sui t, based on the amendment sought for in the plaint. In Misc. Case No.35/2010, the plaintiff prayed for amendment of [6] the pleadings in paragraphs 1, 5, 6, 7, 10 and 11 by way of addition, apart from amendment of the prayer portion under paragraph (I), which are quoted below:- (cid:28)The Director of the Plaintiff Company Sri Saibal Ganguly authorized Sri Arabind a Saha to file the suit against the defendant vide a power of Attorney bearing r egistration No.206 of 2005 registered with the Office of the Sub-Registrar, Dibr ugarh as per resolution adopted by the boards of the Company on 21.3.2005. Certified copy of said General Power of Attorney, abstract resolution, incorpora tion certificate, memorandum of articles of association are annexed herewith be ing Plaintiff’s document No.1, 2, 3 & 4 respectively.’ (ii) That after the last word ’plantation’ of the last line of para 5 of the pla int following sentences need to be added. ’the proforma defendant No.4 purchased land measuring 5 Bighas 2 Kathas 8 Lessas covered by Dag No.402, 404, 410, 412, P.P. No.24 and 25 plus land measuring 5 b ighas 1 Katha 5 Lessas covered by Dag No.297 all situated at Bongali Balijan gao n, Mouza Hapjan, PS. Doomdooma, District Tinsukia, from the Vendor Sri Bhogeswar Baruah son of Bongai baruah resident of Bongali balijan gaon Hapjan, P.S. Doomd ooma District Tinsukia and the Proforma defendant took delivery of possession of the said land covered by sale deed No.2733 of 1984 to the Office of Sub-Registr ar, Dibrugarh on the date of execution and registration of the sale deed i.e. on 10.9.1984.

Subsequently Proforma defendant vide lease deed dated 27th day of J uly, 1987 delivered the land beside other land measuring 4B-1K-3L covered by dag No.410 and 412 of P.P. No.25 situated at Bongali Balijan Gaon (Jalkia Basti) Mo uza Hapjan, P.S. Doomdooma, District Tinsukia to the Plaintiff Company for culti vation of the tea over the suit land and the Plaintiff Company took physical pos session of the said land on the 27th day of July, 1987. The copy of the sale deed and lease deed are annexed herewith being Plaintiffs d ocument No.6 and 7 respectively.’ (iii) that after the last word of last line of para 6(person) the following line s are need to be added. ’Of course while the Plaintiff planted tea bushes over the suit land the defenda nt sent a notice dated 3.3.1990 to the Plaintiff that the Manager and staff of t he Plaintiff started tea plantation over the land covered by Dag No.410 and 412 beside other in Hapjan Mouza, Bongali Balijan Gaon, and requested to demarcate t he land to remove the doubt and also the defendants wrote a letter to the then S .D.C. of Doomdooma Revenue Circle, District Tinsukia vide loetter dated 5.3.1990 whereby the defendant alleged that the Plaintiff has been encroaching the land of the defendants and started plantation over the land beside other, the land co vered by Dag No.410 and 412 of Bongali Balijan Gaon, Mouza Hapjan, District Tins ukia and requested the S.D.C. to get vacate the said land from the hand of the P laintiff.

Subsequently during pendency of this suit in Misc. (J)Case No.2/2006 t he Defendant No.3 in his cross examination admitted the same. The copy of the said letter and certified copy of deposition of Cross examinatio n are annexed herewith being annexure No.8,9 and 10 respectively.’ (iv) That after last word ’upto date’ of the last line of para 7 the following s ub para is needed to be added. ’Some lease rent payment receipt are annexed herewith and marked as document Nos .11, 12, 13 and 14 respectively.’ (v) That after the last word ’civil nature’ of last line of para No.10 of the pl aint following sub para is needed to be added. ’The carbon copy of said ejahar is annexed herewith and marked as Plaintiff’s do cument No.15.’ (vi) That after the last word ’Part thereof’ of the last line of para 11 the fol lowing line is needed to be added. ’The proforma defendant No.4 got the suit land in her occupation on and from 10.

9.84, on the strength of the sale deed No.2733 of 1984 of the Office of the Sub- Registrar, Dibrugarh, the Plaintiff got the occupation of the suit land on 27th day of July, 1987 on the strength of the lease deed executed by Proforma Defenda nt No.4 in favour of the Plaintiff and since then the Plaintiff has been occupyi ng the same without gap. If the Vendor of the sale deed Sri Bhogeswar baruah an d Lessor of the Lease Deed Smti. Suparna bagchi had no right to execute the afor esaid sale deed and Lease Deed in that case also the possession of the Plaintiff of the suit land, on the strength of the said sale deed and lease deed got disp ossessed the defendant w.e.f. 10.9.1984 as such the possession of the suit land became adverse to the interest of the true owner on 10.9.1996 and by right of ad verse possession the Plaintiff and Proforma defendant No.4 become owner of the s uit land and the defendant is not entitled to recover the possession from the Pl aintiff and the right, title, interest become adverse on the strength of continu ous adverse possession till date.’ (vii) That in prayer portion under prayer No.(1) before the first word ’for’ fol lowing lines are required to be added. ’For declaration that the plaintiff and Proforma defendant No.4 jointly have got right, title and interest over the suit land and for confirmation of possession and (cid:29) [7] y the aforesaid orders dated 16th July, 2011 and hence the present petition.

Both the applications were rejected by the learned Court below b It has been contended by Mr. Choudhury, learned counsel for the [8] petitioner that the amendment sought for being necessary for deciding the disput e between the parties effectively and completely and the said amendment, in the event of allowing, would not change the nature and character of the suit, would not have been rejected by the learned Court below and consequently the prayer fo r impleadment of Sri Paritosh Paul also ought not to have been rejected. [9] Per contra, Mr. Sahewalla, learned senior counsel submits that t hough under the provisions of Order 6 Rule 17 CPC, the amendment to the pleading s can be allowed, such amendment, after commencement of the trial, cannot be all owed, unless it is demonstrated that despite the due diligence the parties seeki ng amendment unable to file the application for amendment of the pleadings befor e commencement of trial.

It has been submitted that it is evident from the appl ication filed under Order 6 Rule 17 CPC that the existence of the power of attor ney in favour of Shri P.J. Sharma as well as Shri Arabinda Saha was within the k nowledge of the plaintiff and despite that for a long period of 4(four) years af ter institution of the suit, the plaintiff did not file any application seeking amendment as sought for in paragraph 1 of the pleadings. It has also been submi tted that the amendment sought for in other paragraphs being relating to the fac ts alleged which occurred much prior to the institutions of the suit, it is evid ent that the plaintiff was not at all vigilant and diligent and wanted to bring certain pre-existing fact by way of amendment. Mr. Sahewalla further submits th at the prayer for amendment was made only with a view to overcome the refusal of the learned Court below to allow the plaintiff to accept certain documents.

Th e learned senior counsel also submits that by the proposed amendment the plainti ff wanted to change the nature and character of the suit by seeking a decree for declaration of right, title and interest, though in the suit, the plaintiff cla imed for declaration that the defendants have no right to vacate the plaintiff w ithout following the due process of law. It has also been submitted that the ap plicant seeking amendment was filed after the cross-examination of the plaintiff ’s witnesses is over and after filing of the examination in chief in the form of the affidavit of the defendants witnesses. In reply, it has been submitted by Mr. Choudhury, learned counse [10] l for the petitioner that even if the amendment application is filed after comme ncement of the trial, if such amendment is necessary for deciding the dispute ef fectively and completely, the same can be allowed. [11] ng for the parties.

I have considered the submissions of the learned counsel appeari [12] It is evident from the amendment sought for, which are quoted ab ove, that the plaintiff wanted to amend the pleadings by way of insertion of par agraphs, which relates to certain alleged facts occurred much prior to instituti on of suit. The plaintiff instituted the suit in the year 2006 and thereafter, till the month of December, 2010 they did not file the application seeking amend ment of the pleadings to that effect. The plaintiff was not at all vigilant and diligent. The plaintiff ought to have enquired the factual aspect before insti tution of the suit, which they did not do. [13] The plaintiff by way of amendment also wanted to negate the effe ct of refusal to prove certain documents because of non filing of the same at th e appropriate time. If the amendment sought for is allowed, the plaintiff’s wit nesses have to be reexamined and they have to be cross-examined again thereby pu tting back the clock to an earlier stage.

The plaintiff also claimed for amendm ent of the prayer in the paint, as noticed above, by incorporating the prayer fo r declaration of right, title and interest. As noticed above, the applications have been filed in the month of December, 2010 though the suit was instituted in the year 2006 and after the cross-examination of the plaintiff’s witnesses was over. The prayer of the plaintiff, as noticed above, was for declaration that t he defendants have no right to occupy the suit land and interfere with the peace ful possession of the plaintiff. The amendment sought for, if allowed, would na turally change the nature and character of the suit. [14] This leads to the question as to whether the amendment as sought for in respect of the paragraph 1 can be allowed. It is evident from the state ment made in paragraph 1 that the suit has been instituted by the plaintiff/peti tioner stating that one Shri Arabinda Saha is the authorized attorney, though ac cording to the plaintiff, the power of attorney was executed by the plaintiff in favour of two persons, namely Sri P.J. Sharma and Shri Arabinda Saha, jointly a nd severally.

It is true that the said power of attorney was executed in the ye ar 2005 and the suit was instituted in the year 2006. Such amendment was sought for so that the plaintiff’s suit is not dismissed because of such alleged wrong statement. The said amendment even though made after commencement of the trial ought to have been allowed by the learned Court below, as the foundation for th at purpose has already been laid in the plaint. It is also not in dispute that the said power of attorney has already been filed. [15] That being the position, the impugned order dated 16th July, 201 1 in so far as it relates to the rejection of the prayer for amendment of the pl eadings in the first paragraph of the plaint made under Order 6 Rule 17 CPC is s et aside. [16] In view of the above, the prayer for amendment in respect of the paragraph 1 of the plaint is allowed in the following terms:- (cid:28)The Director of the Plaintiff Company Sri Saibal Ganguly authorized Sri Arabind a Saha to file the suit against the defendant vide a power of Attorney bearing r egistration No.206 of 2005 registered with the Office of the Sub-Registrar, Dibr ugarh as per resolution adopted by the boards of the Company on 21.3.2005.

(cid:29) [17] The plaintiff shall file the amended plaint on the date fixed fo r appearance by this Court in this order. The parties are directed to appear be fore the learned Court below on 19th March, 2012. [18] In view of the rejection of the aforesaid prayer for amendment o f the plaint, the challenge made to the other order dated 16th July, 2011 refusi ng to entertain the application filed by the plaintiff under Order 1 Rule 10 CPC stands rejected. [19] ated above. No costs. The revision petition is accordingly allowed to the extent indic