Subrtata Saha & Ors. v. Nemai Chand Saha

written statement. Learned Trial Court by the judgment and decree dated 31st January, 2012 was pleased to dismiss the suit on contest. Being aggrieved by the said judgment of dismissal, aforesaid Title Appeal, being T.A. 26 of 2012 has been preferred by the plaintiff / petitioner. During pendency of the said Appeal, appellant filed two applications, one under Order VI, Rule 17 as well as another application under Order 2 I, Rule 10(2) of the Code of Civil Procedure. The opposite party herein filed written objection against the said applications. Learned Court below by the order impugned was pleased to reject both the applications filed under Order VI, Rule 17 as well as application under Order I, Rule 10(2) of the Code. Learned Counsel appearing on behalf of the petitioners did not press the rejection order in connection with the application under Order I, Rule 10(2) of the Code but he has pressed hard against the rejection order passed in connection with the application filed under Order VI, Rule 17 of the Code seeking amendment of the plaint. Plaintiff alleged in his amendment application in support of his prayer that mother of both the parties Nanda Rani was the original recorded owner in respect of 11 decimal of land in R.S. plot no. 4988 as well as half of the undivided pond land measuring 08 decimal out of 17 decimal in R.S. plot no. 4990. Said Nanda Rani during her life time sold 3 cottas, 3 chittak, 15 Sq. ft. of land with dilapidated building in favour of plaintiff in eastern portion and the same quantum of land in favour of defendant in western portion. Plaintiff’s further case is defendant with ulterior motive and in order to grab aforesaid ejmali pond, managed to have mentioned in his deed of conveyance dated 3

18.2.1986, 8 cottak 1 chittak 22 ½ Sq. ft in total and according to plaintiff such recital in the deed whereby ejmali pond has been included is fraudulent, illegal and void and site plan attached to the deed is absolutely self contradictory and reveals the fraud. However, plaintiff in his plaint prayed for cancellation of defendant’s entire deed but Trial Court refused to pass decree on the ground that though plaintiff admitted part of the transfer in the defendant’s deed as valid but he has prayed for cancellation of defendant’s entire deed. Accordingly, in the Appellate stage he wants to incorporate by way of amendment of plaint that in the plaint he has sought for cancellation of transfer in favour of defendant only to the extent of land measuring 5 cottah 2 chittak 22 sq.ft. of ejmali pond land on plot no. 4990, which defendant collusively incorporated in the deed by practising fraud. Mr. Kushal Chatterjee, learned Counsel appearing on behalf of the petitioners submits that the Court below erred in not appreciating the fact that the prayer as made in the plaint if read harmoniously with the entire plaint then it will be evident that the plaintiffs/petitioners herein sought for a declaration that the sale deed is void to the extent of 5 cottah 2 chittaks 22½ Sq. Ft. and by way of amendment they sought to clarify the same. Accordingly, the proposed amendment 4 allowed, will no way change the nature and character of suit and on the contrary the proposed amendment is very much necessary for effective adjudication of the suit. In fact, the petitioners sought to be added by way of application for addition of party who have interest in said 5 cottah 2 chittaks 22½ Sq. Ft. being the ejmali property of the brothers which is required to be declared as cancelled to that extent only. In fact the petitioner does not want to introduce any new prayer by way of amendment but the Court below has rejected the application on certain irrelevant consideration. The Court below had erred in not appreciating the fact that the appeal is a continuation of lis and amendment application and application for addition of party can very well be filed before the 1st Appellate Court for effective adjudication of the suit. Accordingly, he has prayed for setting aside the order impugned. In this context he relied upon paragraphs 3 and 4 of the judgment delivered by the Hon’ble Apex Court in the case of Nanduri Yogananda Lakshminarasimhachari & Ors. Vs. Sri Agastheswaraswamivaru, reported in (1960) 2 SCR 768 in support of his contention that the prayer for declaration, which plaintiff wants to incorporate by way of amendment flows from the allegations already levelled in the plaint and it neither involves change of the cause of action nor does it 5 require a fresh trial. Mr. Arnab Roy, learned Counsel appearing on behalf of the opposite party referred the relevant portion of the judgment passed by the Trial Court in Title Suit No. 76 of 1995 dated 31st January, 2012 against which present appeal being T.A. 26 of 2012 has been preferred and contended that the petitioners herein as plaintiffs pleaded the same issue before the Trial Court and the Trial Court after considering the submissions made by both the parties adjudicated the said issue with the observation that it is clear from the evidence that the original plaintiff asked about the alleged sale which shows Nanda Rani Saha had full knowledge about execution of the deed dated 18.02.1986 but she did not take any step challenging its validity till her death and the absence of any action on the part of Nanda Rani against the alleged sale shows the intention and knowledge of Nanda Rani and plaintiffs’ allegations that fraud has been practised and the deed was prepared in collusion with the Deed Writer behind the back of Nanda Rani looses it’s strength. Accordingly, the Court below came to a conclusion that the plaintiff has failed to prove that deed dated

18.02.1986 had been prepared in collusion with the Deed Writer and further observed that according to the plaintiff the 6 deed dated 18.02.1986 is operative and valid in respect of the 3 cottahs 3 chittacks 15 sq. ft. land but he has prayed for declaration that the entire deed is void. He further submits that the proviso to Order VI, Rule 17 of the Code made it clear 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 commencement of the trial. Accordingly, he submits that since in the present context the petitioners/plaintiffs failed to agitate that they were prevented by any sufficient reason for not raising the said issue before commencement of the trial the present application for amendment is not maintainable and the Court below has rightly rejected the same and for which the order impugned does not call for any interference. In this context he relied upon paragraphs 34, 35, 38 and 40 of the judgment delivered by the Hon’ble Apex Court in the case of Gayathri Women’s Welfare Association Vs. Gowramma & Änr., reported in (2011) 2 SCC 330 and paragraph 16 onwards in the case of Shivshankara & Anr. Vs. H.P. Vedavyasa Char, reported in 2023 SCC OnLine SC 358. I have considered the submissions made by both the parties. The present application for amendment has been 7 preferred on 2nd July, 2016 in appellate stage. From the judgment impugned it appears that the plaintiffs in the plaint case have categorically stated that they were obstructed by the defendant from using the pond and the appertaining land beyond the land purchased by the plaintiff. So at least before filing of the suit plaintiff came to know that the defendant allegedly in collusion with the deed writer has included the land appertaining to Dag No. 4490 in the deed executed on 18.2.1986 in addition to the land measuring 3 cottah 3 chittaks and 15 sq. ft. Moreover, it further appears from the judgment that the Trial Court has dealt with the said issue extensively and has come to a finding and delivered his judgment. I have also gone through the petition for amendment and there is not even a whisper as to what precluded plaintiff from making an application amendment before commencement of trial. From the averments made in the plaint it is clear that the case sought to be added by way of amendment was all along known to plaintiff. The application for amendment does not make any averment as to due diligence clause and the averment only made in support of amendment as mentioned in paragraph 5 is that Trial Court held that plaintiff claimed for declaration of the entire deed of defendant as void though his case is in 8 respect of land measuring 5 cottah, 2 chittak 22 sq.ft. of ejmali pond illegally mentioned in the deed is fraudulent and thereby void ab initio. The aforesaid averment in the amendment application, in my opinion, does not satisfy the requirement of Order VI Rule 17 without fulfilling the requirement of law that the matter now sought to be introduced by the amendment could not have been raised earlier in spite of due diligence. In Vidyabai & Ors. Vs. Padmalatha & Anr., reported in (2009) 2 SCC 409 it was held that by reason of the amendment Act of 2002, the proviso inserted in Order VI, Rule 17 is couched in a mandatory form. The Courts jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied viz. It must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial. In such view of the matter I find that the Court below has not committed any irregularity nor he has exceeded his jurisdiction by passing the order impugned. The order impugned is also not perverse in any way, so that the interference by this Court under Article 227 of the Constitution of India is required. In such view of the matter the application, being 9 C.O. 694 of 2019 is dismissed. The learned Appellate Court below is directed to dispose of the appeal at the earliest preferably within a period of six months from the date of communication of this order, without being influence by any observation made herein. Urgent photostat certified copy of this order, if applied for, be supplied to the parties, on priority basis on compliance of all usual formalities. ( Ajoy Kumar Mukherjee, J.)