High Court · 2012

[2] The petitioner, who is the plaintiff in Title Suit No.17/2007, b y the present application, has challenged the order dated 16th July, 2011 passed in Misc. (J) Case No.83/2010 as well as the order of the even date passed in Mi sc. (J) Case No.84/2010. By the said orders, noth 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.17/2007 in the Court of the learned Munsiff No.1 at Tinsukia praying for declaration that t he defendants (present respondents) have no right to evict the plaintiff from th eir suit land forcefully and/or interfere into the peaceful occupation of the pl aintiff over the suit land as well as for permanent injunction. The plaintiff i n the plaint, apart from other, has pleaded that they are possessing the suit la nd for more than 20(twenty) years without any interference from any corner and t hey have acquired absolute right over the said land by right of adverse possessi on. In paragraph 1 of the plaint, it has been pleaded that the plaintiff is rep resented by its Manager and attorney Shri P.J. Sharma, Son of Shri J.C. Sharma. In paragraph 10 of the plaint, the plaintiff has pleaded about passing of certai n order by the Additional District Magistrate, Tinsukia in a proceeding under Se ction 144 Cr.P.C. The defendants on receipt of the summons entered appearance an d filed the written statement in the month of June, 2008 raising the plea of mai ntainability of the suit in the present form, apart from contending that the ori ginal owners of the suit land, namely Sri Thipra Mura and Shri Kola Mura, both s ons of Late Shyam Sundar Mura, who were issued with the annual patta and which w as subsequently made periodic, sold the land to the mother of the defendant No.1 , Smti. Ginni Devi Agarwal, and accordingly they became the owners of the proper ty. The plaintiff filed the evidence on affidavit of their witnesses, who were duly cross-examined by the defendants. During the course of examination of witn esses, an attempt was made by the plaintiff for proving the copies of the orders passed by the District Magistrate as well as the police report, which was, howe ver, not allowed, as those were not filed alongwith the plaint or in the subsequ ent stage. [4] When the suit was fixed for the cross-examination of defendants witness, the plaintiffs filed 2(two) applications, one under Order 1 Rule 10 CPC registered and numbered as Misc. (J) Case No.83/2010 and the other under Order 6 Rule 17 of the CPC, which was registered and numbered as Misc. (J) Case No.84/ 2010. [5] In Misc. Case No.83/2010, the plaintiffs have prayed for implead ment of one Paritosh Paul, as party defendant in the suit, based on the amendmen t sought for in paragraph 5 of the plaint. [6] In Misc. Case No.84/2010, the plaintiff prayed for amendment of the pleadings in paragraphs 1, 5 and 10, by way of addition, apart from amendmen t of the prayer portion of sub-paragraph (i) of paragraph 7, which are quoted be low:- (cid:28)i) That after the last word Sharma of the last line of Para 1 of the plaint fol lowing sentence are needed to be added: ’and Senior Executive Sri Arabinda Saha, the Director of the Plaintiff Company, Sri Saibal Ganguly authorized Sri P.J. Sharma the Manager of the Plaintiff Compa ny and to the Senior Executive Sri Arabinda Saha jointly and severally to to the Senior Executive Sri Arabinda Saha jointly and severally to do on behalf of the Plaintiff Company against the defendants (any party) for protection of the inte rest of the Plaintiff Company vide General Power of Attorney bearing Registratio n 206 of 2005 registered with the Office of the Sub-Registrar Dibrugarh as per r esolution adopted by the board of Directors of the Plaintiff Company on 21.3.95. Certified copy of said General Power of Attorney, abstract resolution of board o f Director, incorporation certificate, Memorandum and Articles of Association ar e annexed herewith being Plaintiffs documents. ii) That after the last word of the last line of para 5 the following sub para i s need to be added: ’That during pendency of this suit the Plaintiff would come to know that the afo resaid land was earlier under annual patta in the name of Sri Shyam Chandra Mura and on the death of Shyam Chandra Mura his two Sons Thibra Mura and Kola Mura g ot their names in the Chithas and also it appears on e Shri Paritosh Pal son of Sri Birendra Kumar Pal has got his name in the Chitha under Serial No.4 against the Dag No.407 and 409 as it appears from the note subsequently the suit land co nverted to periodic patta vide order dated 22.2.1985 passed in case No.91 of 198 4-85 and while the said land converted to Periodic Patta under Patta No.34 the n ame of Sri Paritosh Pal was existing but neither Paritosh Paul nor Thibra Mura o r Kola Mura have interfered to the possession of the Plaintiff who occupied the land since 1st April 1982. In recent past i.e. in July, 2010 it is discovered b y the Plaintiff that Paritosh Pal purchased the land measuring 4 Bighas 3 Kathas 8 Lechas covered by Dag No.302, 407 and 409of Bongali Bajijan gaon while the la nd was under annual Patta vide Regd. Deed No.2729/84 of the Office of the Sub-Re gistrar, Dibrugarh from Sri Thibra Mura. On enquiry Sri Paritosh Paul has given , one certified copy of said Sale Deed, to the Plaintiff in July 2010. On furth er enquiry, where about of Sri Thibra Mura and Kola Mura could not be known to t he Plaintiff for which they could not be made party to the suit. Certified copy of the said Sale Deed and Old Hathor Chitha Nokol is annexed here with. iii) That after the last word order of para 10, the following sentence need to b e added: ’The Certified copy of the order of District Magistrate and Police report are an nexed herewith.’ iv) That in line no 1 of Sub-Para (i) of para 16 in prayer portion the following sentence is needed to be added after the word that: ’the Plaintiff has got right, title, interest and possession over the suit land by right of adverse 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 [8] It has been contended by Mr. Choudhury, learned counsel for the 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. Per contra, Mr. Sahewalla, learned senior counsel submits that t [9] 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 3(three) years, after institution of the suit, the plaintiff did not file any application seekin g amendment as sought for in paragraph 1 of the pleadings. It has also been sub mitted that the amendment sought for in paragraph 5 being relating to the period of 1984-85, it is evident that the plaintiff was not at all vigilant and dilige nt and wanted to bring certain pre-existing fact by way of amendment. Mr. Sahew alla further submits that the third prayer for amendment was made only with a vi ew to overcome the refusal by the learned Court below to allow the plaintiff to accept those documents. The learned senior counsel also submits that by the for th prayer for amendment, the plaintiff wanted to change the nature and character of the suit by seeking a decree for declaration of right, title and interest, t hough in the suit, the plaintiff claimed for declaration that the defendants hav e no right to vacate the plaintiff without following the due process of law. It has also been submitted that the application seeking amendment was filed after the cross-examination of the plaintiff’s witnesses is over and after filing of t he examination in chief in the form of the affidavit of the defendants’ witnesse s. [10] In reply, it has been submitted by Mr. Choudhury, learned counse 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 in paragraph 5 wanted to amend the pleadings by way of i nsertion of a paragraph, which relates to the period 1984-85. The plaintiff ins tituted the suit in the year 2007 and thereafter, till the month of December, 20 10 they did not file the application seeking amendment of the pleadings to that effect. In the application seeking amendment, it has been stated that during pe ndency of the suit the plaintiff came to know about the existence of those facts , which reflects that the plaintiff was not at all vigilant and diligent. The p laintiff ought to have enquired about the factual aspect before institution of t he suit, which they did not do. [13] Relating to the prayer for addition of a sentence in paragraph 1 0, the plaintiff wanted to negate the effect of refusal to produce and prove tho se documents because of non filing of the same at the appropriate time. If this amendment is allowed, the plaintiff’s witnesses will have to be reexamined and they have to be cross-examined again thereby putting back the clock to an earlie r stage. The plaintiff also claimed for amendment of the prayer in the paint, as noticed above, by incorporating the prayer for declaration of right, title and interest on the basis of adverse possession. As noticed above, the applications have been filed in the month of December, 2010 though the suit was instituted i n the year 2007 and after the cross-examination of the plaintiff’s witnesses was over. The prayer of the plaintiff, as noticed above, was for declaration that the defendants have no right to evict the plaintiff without following the due pr ocess of law, though the plaintiff in paragraph 11 of the plaint has claimed tha t they have the right over the property because of the adverse possession. The plaintiff knowing fully well their own case did not pray for declaration of thei r right, title and interest and waited for more than 3(three) years to file the application seeking amendment, which would naturally change the nature and chara cter of the suit. The aforesaid prayer Nos.2, 3 and 4 for amendment, therefore, cannot be allowed and hence rightly rejected by the learned Court below. [14] This leads to the question as to whether the amendment as sought for in respect of paragraph 1 can be allowed. It is evident from the statement made in paragraph 1 that the suit has been instituted by the plaintiff/petition er and it has been stated that one Shri P.J. Sharma is the authorized attorney, though according to the plaintiff the power of attorney was executed by the plai ntiff in favour of 2(two) persons, namely Shri P.J. Sharma as well as Arabinda S aha, jointly and severally. It is true that the said power of attorney was exec uted in the year 2005 and the suit was instituted in the year 2007. Such amendm ent 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 commencemen t of the trial ought to have been allowed by the learned Court below, as the fou ndation for that 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] owed in the following terms:- In view of the above, amendment in respect of paragraph 1 is all After the last word Sharma of the last line of Para 1 of the plaint following se ntence are added: ’’and Senior Executive Sri Arabinda Saha, the Director of the Plaintiff Company, Sri Saibal Ganguly authorized Sri P.J. Sharma the Manager of the Plaintiff Comp any and to the Senior Executive Sri Arabinda Saha jointly and severally to to th e Senior Executive Sri Arabinda Saha jointly and severally to do on behalf of th e Plaintiff Company against the defendants (any party) for protection of the int erest of the Plaintiff Company vide General Power of Attorney bearing Registrati on 206 of 2005 registered with the Office of the Sub-Registrar Dibrugarh as per resolution adopted by the board of Directors of the Plaintiff Company on 21.3.95 . (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 prayer for amendment of the para graph 5, the challenge made to the other order dated 16th July, 2011 refusing to entertain the application filed by the plaintiff under Order 1 Rule 10 CPC stan ds rejected. [19] No costs. The revision petition is accordingly allowed as indicated above.