Dismissed

Amit Kumar Bajanka v. Shankar Lal Bhajanka

Gauhati HC3 Oct 2018CRP(IO)/142/2017

Case brief

AI extract

What is this about?

High Court dismissed a revision petition challenging the trial court's order allowing amendment of a written statement to disclose subsequent tenancy agreements. The Court held the amendment did not change the suit's nature and was not belated due to the subsequent event.

What did the court decide?

Revision dismissed; interim order of 22.06.2017 vacated.

Amit Kumar Bajanka Vs Shankar Lal Bhajanka — Specific Performance | Gauhati HC (2018)

¶1

Page No.# 1/6

¶2

GAHC010270052017

¶3

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

¶4

Case No. : CRP(I/O) 142/2017

¶5

1:AMIT KUMAR BAJANKA

¶6

S/O- LATE KAILASH CHAND BHAJANKA, R/O- BHAJANKA BHAWAN, GS ROAD, CHRISTIAN BASTI, GHY-05, DIST- KAMRUP, ASSAM

¶7

VERSUS

¶8

1:SHANKAR LAL BHAJANKA

¶9

S/O- LATE RAM KUMAR BHAJANKA, R/O- 3RD FLOOR, BHAJANKA BHAWAN, GS ROAD, CHRISTIAN BASTI, GHY-05, DIST- KAMRUP, ASSAM

¶10

Advocate for the Petitioner : MR.O P BHATI

¶11

Advocate for the Respondent : MR G KHANDELIA

¶12

BEFORE

¶13

HONOURABLE MR. JUSTICE KALYAN RAI SURANA

¶14

ORDER

¶15

Date : 03.10.2018

¶16

Heard Mr. O.P. Bhati, learned counsel for the petitioner as well as Mr. G. Khandelia, learned counsel for the respondent.

¶17

By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 16.06.2017, passed by the learned Civil Judge No.2, Kamrup (M), Guwahati in TS No.128/2016, by which the prayer made by the respondent under Order VI

¶18

Page No.# 2/6

¶19

Rule 17 CPC for amendment of the written statement-cum-counter claim was allowed.

¶20

The learned counsel for the petitioner has submitted that the petitioner had filed a suit for specific performance of contract against the respondent wherein he had prayed for a decree for specific performance of contract by directing the respondent to handover the suit premises to the petitioner as per terms of memorandum in that respect with further prayer not to carry out any construction/ modification/ alteration work in the suit premises or to change the nature and character of the suit premises with alternative prayer that if the decree for specific performance was not granted, then the respondent be decreed to refund the amount of Rs.5,00,000/- together with interest and damages. The suit premises described in Schedule-A of the plaint is an area measuring 816 sq. ft. consists of shop No. 2, 3, 6, 7, 9 and 10 in the ground floor of Bhajanka Bhawan/ Market situated at G.S. Road, Christian Basti, Guwahati and the Schedule-B premises consists of area measuring 616 sq. ft. consists of shop No. 3, 6, 7, 9 and 10 in the ground floor of the said building and the Schedule-C premises consists of shop No. 2 measuring 200 sq. ft. in the said market. The respondent contested the suit by filing his written statement with counter claim, inter-alia, praying for dismissal of the suit; for declaration that the Memorandum of Agreement dated 01.12.2015 is illegal, unauthorized and void ab initio and not binding on the respondent; for decree of mesne profit of Rs.2,50,000/- per month and interest till status quo order is vacated; for decree of compensation/ damages to the extent of Rs.2,50,000/-; cost, etc.

¶21

The learned counsel for the petitioner submits that the initial defence taken in the written statement was that the respondent wanted the suit premises for the business of his son. However, by way of amendment, the respondent is now seeking to introduce a inconsistent plea that he had let out the suit premises for urgent need of money, and that the said plea was not sustainable for allowing amendment of the written statement-cum- counter claim. It is submitted that in course of time, the trial had commenced and the crossexamination of the plaintiff’s witnesses had started. However, subsequent thereto, the respondent entered into two tenancy agreement and had let out a part of the suit premises to two shops under the name and style of M/s. Ajmal and Sons in respect of shops No. 2, 7

¶22

Page No.# 3/6

¶23

and 9 and M/s. Rangoli Sweets and Namkeens in respect of shop No. 3, 6 and 10. Thereafter, the respondent had filed an application under Order VI Rule 17 CPC for amending the written statement-cum-counter claim by proposing to add a new paragraph No. 33(s), disclosing therein that the respondent had entered into a Tenancy Agreement dated 11.07.2016 with M/s. Ajmal and Sons and another Tenancy Agreement dated 01.08.2016 was entered with M/s. Rangoli Sweets and Namkeens. It is submitted that the petition for amendment of the written statement-cum-counter claim was belatedly filed on 04.02.2017. It is further submitted that the said amendment application does not disclose any due diligence on part of the respondent to pray for amendment of the written statement-cum- counter claim after the trial had commenced.

¶24

The learned counsel for the petitioner further submits that as per his instruction there has been a further subsequent event by which one tenant had left the market and a new tenant has been inducted by the respondent and therefore, it is submitted that if amendments are allowed to be carried out in this manner, the amendment would be never ending process, which should delay the suit for specific performance of contract. In this connection, it is also submitted that the subsequent dealing with the suit premises by the respondent is hit by the doctrine of lis pendens provided in Section 52 of the Transfer of Property Act and, as such, any subsequent induction of tenant in the suit premises was not relevant for the purpose of deciding the real issues in controversy.

¶25

The learned counsel for the petitioner further submits that the purpose of amending the written statement-cum- counter claim is only to delay the proceedings of the suit, which was filed for specific performance of contract and in this connection, it is further submitted that the subsequent occupier of the suit premises shall be bound by the decree as provided for under Section 52 of the Transfer of Property Act. Referring to the provisions of the proviso to Order VI Rule 17 CPC, it is submitted that after the amendment of the said provision, unless the respondent discloses due diligence, any proposed amendment, without disclosing reasons is liable to be set aside and accordingly, it is submitted that the impugned order is bad in law having allowed the amendment of plaint, which should have the effect of changing

¶26

Page No.# 4/6

¶27

the nature and character of the suit.

¶28

It is further submitted that the petitioner apprehends that the third party inducted in the said suit premises, may set up a claim of their independent right by impleading themselves in the suit, which would further delay the proceedings.

¶29

The learned counsel for the respondent has made his submission in support of the impugned order.

¶30

Having heard the submissions made by the learned counsel for the parties, the proposed paragraph 33(s), which is sought to be introduced by way of amendment, is quoted below:

¶31

“That after paragraph 33(r) the following paragraph may be inserted:

¶32

(s) the defendant/ counter claimant entered into a Tenancy Agreement dated 11.07.2016 with M/s. Ajmal & Sons in respect of Shop No. 2,7 and 9 (admeasuring approx about 512 sq feet) and similar tenancy agreement dated 01.08.2016 was entered with M/s. Rangoli Sweets and Namkeens in respect of shop No. 3, 6 and 10 (admeasuring approx 306 sq. ft.). Be it stated herein that the aforesaid shop premises is the suit premises in the instant case.”

¶33

This Court finds that the learned counsel for the petitioner has specifically stated that after the cross-examination of PWs had started, the Tenancy Agreement dated 11.07.2016 and 01.08.2016 were entered into. Therefore, the petition for amendment having been filed on 04.02.2017 is based on subsequent event, which has come into existence after the commencement of the suit. At this stage, this Court would not like to comment on the merit of the amendment, which would be subject to the decision of the learned trial court on merit when the suit is decided. However, it prima-facie appears to this Court that the event which had taken place in respect of the suit premises after commencement of trial has been

¶34

Page No.# 5/6

¶35

disclosed.

¶36

In the opinion of this Court, introduction of the paragraph 33(s) does not affect the merit of the case because the suit for specific performance of contract can be decided on its own merit even if the suit premises has let out to others, because even the learned counsel for the petitioner has submitted that the subsequent occupier would be bound by the decree. Hence, the disclosure by the respondent that the suit premises was let out to others cannot be said to have changed the nature and character of the suit or the counter-claim because this Court does not find that any new prayer has been introduced in the counter-claim. Therefore, in the opinion of this Court the respondent has only brought the notice of this Court to subsequent event.

¶37

Insofar as the plea of due diligence is concerned, the respondent has given some explanation to show that the order dated 05.07.2016 passed in Misc.(J) Case No. 174/2016 was taken in appeal and the appeal was dismissed on 23.12.2016 and against the said order, a Misc. Appeal No. 49/2016 was preferred and thereafter, the matter was taken up in revision before this Court by filing CRP 26/2017. It is also seen that the agreements were entered into on 11.07.2016 and 01.08.2016. The prayer for amendment filed on 04.02.2017 being subsequent event is not found to be “belated”.

¶38

At this stage, this Court does not deem it fit to make any comment on the submission made by the learned counsel for the petitioner that the letting out of the property would constitute a transfer within the meaning of Section 5 of the Transfer of Property Act because this court is only required to confine itself to the merit of the order passed by the learned trial court allowing the amendment and therefore, if those issues sought to be raised by the learned counsel for the petitioner is gone into, it would affect the merit of the suit. Therefore, it would be sufficient to mention herein that the Hon’ble Supreme Court while interpreting the scope of Section 52 of the Transfer of Property Act, 1882, in the case of A. Nawab John Vs. V.N. Subramaniyam (2012) 7 SCC 738 has held that the transfer of pendente lite is not void

¶39

Page No.# 6/6

¶40

but remains valid subject to the result of the suit and that the provisions of Section 52 of the Transfer of Property Act only renders such transfers subservient to rights of parties to suit as may be eventually determined in the suit and consequently, pendente lite purchaser would be entitled to or suffer the same legal rights and obligation of his vendor as may be eventually determined by court.

¶41

Under the circumstances, the trial court had exercised its discretion to allow the amendment and the nature of the proposed amendment is not found to materially change the nature and character of the suit. This Court also finds that the nature of amendment, as allowed, will aid in determining the real controversy between the parties. Moreover, this Court does not find any infirmity in the decision of the learned trial court about the lack of due diligence in the present case because as per the impugned order passed by learned trial court, the plaintiff is yet to be cross-examined as on the date of the impugned order. It is also seen that the learned counsel for the petitioner has also submitted that after the crossexamination of PW’s had started a part of the suit property had been let out.

¶42

Therefore, this revision fails and the same stand dismissed. Consequently, the interim order passed on 22.06.2017 shall stands vacated.

¶43

It is made clear that any observation made herein shall not prejudice either of the parties in the trial of the suit.

¶44

Both the sides, who are duly represented by their learned advocates before this Court, shall appear before the learned Court of Civil Judge No.2, Kamrup (M), Guwahati, on 08.10.2018 , without any further notice of appearance, and by producing a certified copy of this order, the parties shall seek further instructions from the said learned Court.

¶45

JUDGE

¶46

Comparing Assistant

Amit Kumar Bajanka v. Shankar Lal Bhajanka

Case brief

What is this about?

What did the court decide?

Amit Kumar Bajanka v. Shankar Lal Bhajanka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Mukut Phukan Vs the United Bank of India and 2 Ors.

Basistha Kalita Vs Shailendra Kumar Sarma

Smti Mamani Mahanta and 4 Ors. Vs Sri Chandan Das and Anr.

M/S Gajanan Structures and Anr. Vs Biswajit Deb and 8 Ors.

Abul Kalam Choudhury Vs Alah Uddin Laskar

Smti Giribala Das and 3 Ors, Vs Md. Imam Haque and 9 Ors.