Dismissed

Abhijit Roy v. Smti Sheuli Sarma Chakraborty and 2 Ors.

Gauhati HC7 Jan 2020CRP/431/2013

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed a revision petition under Article 227 challenging the trial Court's approval of an amendment to the written statement in a property suit, holding no prejudice was caused as the suit was at the appearance stage.

What did the court decide?

The revision petition was dismissed, upholding the trial Court's order allowing the amendment of the written statement.

Abhijit Roy Vs Smti Sheuli Sarma Chakraborty and 2 Ors. — Property and Title | Gauhati HC (2020)

¶1

Page No.# 1/11

¶2

GAHC010132752013

¶3

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

¶4

Case No. : CRP 431/2013

¶5

1:ABHIJIT ROY S/O LT. JOGESH CHANDRA ROY, NILMONI ROAD, W/NO.9, P.O. KARIMGANJ, DIST- KARIMGANJ, ASSAM

¶6

VERSUS

¶7

1:SMTI SHEULI SARMA CHAKRABORTY and 2 ORS W/O SRI BISHNUPADA CHAKRABORTY, NILIMA ROAD, W/NO.9, KARIMGANJ TOWN, P.O. and DIST- KARIMGANJ, PIN-788710, ASSAM

¶8

2:KARIMGANJ DEVELOPMENT AUTHORITY KARIMGANJ NOTICE TO THE SERVED ON CHAIRMAN DEVELOPMENT AUTHORITY KARIMGANJ ASSAM P.O. KARIMGANJ-788710 DIST- KARIMGANJ ASSAM 3:THE CHAIRMAN DEVELOPMENT AUTHORITY KARIMAGANJ P.O. KARIMGANJ-788710 DIST- KARIMGANJ ASSA

¶9

Advocate for the Petitioner : MR.N DHAR

¶10

Advocate for the Respondent : MS.B SARKAR R-1

¶11

Page No.# 2/11

¶12

BEFORE

¶13

HON’BLE MR. JUSTICE KALYAN RAI SURANA

¶14

Advocates for the petitioner : Mr. A. Dhar Advocates for the respondent No.1 : Mr. G.P. Bhowmik, Senior Advocate, Mr. S. Dey Advocates for respondents No.2-3 : Mr. M.H. Rajbarbhuiyan Date of hearing : 02.01.2020 Date of judgment : 07.01.2020

¶15

JUDGMENT AND ORDER

¶16

(CAV)

¶17

Heard Mr. N. Dhar, learned counsel for the petitioner as well as Mr. G.P. Bhowmik, learned senior counsel assisted by Mr. S. Dey, learned counsel for the respondent No.1 and Mr. M.H. Rajbarbhuiyan, learned counsel for respondents No.2 and 3.

¶18

This revision under Article 227 of the Constitution of India is directed against the order dated 18.09.2013 passed by the learned Munsiff No.2, Karimganj in Misc. Case No. 199/2012, in T.S. No.115/2008, thereby allowing the application filed by the respondent No.1 on 16.10.2012, under Order VI, Rule 17 CPC for amendment of the written statement.

¶19

The relevant paragraphs of the written statement wherein amendment was sought for and the nature of amendment has prayed for are quoted below in the comparative chart

¶20

Page No.# 3/11

¶21

Written Statement Proposed amendment (1) …. As a result a small part of (1) In Page No.3 the last sentence of erstwhile ejmali path might had been left Para No.9 i.e. the sentence ‘As a result out of acquisition at the sought eastern a small part of erstwhile ejmali path portion of the path of the earlier compact ………………….. there is a part of ejmali homestead and thus at the time of selling path.’ is to be replaced by the the southern most part of the homestead sentence ‘As a result the erstwhile land owned by the heirs of Gobinda ejmali path as was mentioned in the Charan Sharma alias Kuti Chand Sharma partition deed of 1903 (as mentioned in the year 1965 it was mentioned in the in the plaint) was disappeared and schedule of the sale deed that to the thus in the schedule of the purchase southern part of the eastern boundary of deed of 1965 of the plaintiff’s father it the sold out land there is a part of ejmali is mentioned that to the northern part path. of the eastern boundary of the sold out land there is the part of ejmali (2) …. Moreover, it is re-iterated that path. And as such the ejmali path as owing to the construction of the mentioned in the partition deed of embankment by the E & D department 1903 and the ejmali path mentioned the northern part of the erstwhile ejmali in the purchase deed of 1965 of the path of the heirs of Late Narottam plaintiff’s father are not same and one Sharma was abolished and as such there but the plaintiff with ill motivation is is no path in the locality as illusorily trying to overlapping the said two described by the plaintiff in the plaint, paths.’ hence the attempt to create blockage by constructing any wall by the answering (2) In page no.6 line no.5 the words defendant on and from 16-11-2006 is ‘northern part of’ are to be omitted nothing but an absurd……… Morover, the and in line no.23 after the word existence of any ejmali path through and ‘Moreover,’ the word ‘the’ is to be over the land of the dag no.3336 and replaced by the word ‘there is no’ and 3337 of Mouza- Karimganj town, Sheet in line no.25 the word ‘has not been

¶22

Page No.# 4/11

¶23

no.10 has not been in existence as per Vandyke map of settlement authority prepared in the year 1966-67 but since then neither of the plaintiff or any of his inmates including their predecessor father reised any question or protest for incorporation of any such ejmali path through and over the eastern part of the said two settlement dags as it is very much known to the plaintiff, his cosharers and their father that they had not acquired any such right over any ejmali path prolonged north-south vide their purchase deed no. 132 dated: 08.01.1965.

¶24

(3) ….. However a small portion of the said common passage was remained as unacquired to the east of the southern most portion of the purchased plot of said Govinda Charan Sharma, which was later on being sold out by the heirs of said Govinda Charan Sharma alias Kuti Chand Sharma to the father of the plaintiff and others. …..

¶25

existence’ are to be omitted.

¶26

(3) In continuation of Sub-Para (c) of Pare-12, in page no.8 the sentence started with the word ‘However’ in line no.4 and ended with the words ‘plaintiff and others’ in line no.7/8 is to be replaced by the sentence ‘As a result the said common passage was completely disappeared and the approach of the each of the homesteads directly connected to the embankment of the Government (now border road) to the east but the plaintiff with evil motivation trying to overlapping the common passage mentioned in deed no.965 of 1903 and the ejmali passage mentioned in the eastern boundary of the deed of 1965 although the direction of each of the said paths is different.’

¶27

(4) In page no.8 sub-para no. (d) the word ‘southern’ in between the word ‘the’ and ‘boundary’ is to be corrected as ‘northern’, in line no.17.

¶28

(4) ….. More so the southern boundary wall of the plaintiff’s homestead has also been placed extending the same towards east up to the alignment of said Iron Gate. Thus from the above stated acts

¶29

Page No.# 5/11

¶30

and conducts of the plaintiff’s family it is crystal clear that there is no existence of any path proceeding towards north from their homestead as motivatedly avert by the plaintiff in his plaint.

¶31

The learned trial Court was of the opinion that the amendment was required to be allowed for the proper adjudication of the suit and that the proposed amendment would not cause any irreparable loss to the other party or change the nature of the suit. Moreover, the learned trial Court on considering that the suit was in the appearance stage, allowed the proposed amendment.

¶32

Assailing the impugned order, the learned counsel for the petitioner has submitted that the effect of allowing the amendment is that the admission by the respondent No.1 in her written statement would be nullified. It is submitted that the respondent No.1 had admitted the existence of a path in paragraph 6, 10, 11 and 12 of the written statement. It is also submitted that the existence of the path can also be seen in the rough sketch map appended to the written statement filed by the respondent No.1. It is submitted that the said path which has morefully described in schedule A1 of the plaint is the sole subject matter of the suit and therefore, the admission by the respondent No.1 about the existence of the suit path cannot be permitted to be diluted by amendment of the written statement on a plea of explaining such admission.

¶33

It is submitted that the learned trial Court has relied on the case of Sushil Kumar Jain vs. Manoj Kumar & Anr., AIR 2009 SC 2544 and it appears from the said citation that the judgment of the Full Bench of the Supreme Court of India rendered in the case of M/s. Modi Spinning & Weaving Mills Co. Ltd. & Anr. vs. M/s. Ladha Ram & Co, (1976) 4 SCC 320: AIR 1977 SC 680 was not brought to the notice of the Division Bench. Accordingly, the learned counsel for the petitioner has placed reliance on paragraph 10 of the case of M/s. Modi Spinning & Weaving Mills Co. Ltd. (supra) which is quoted below:-

¶34

“10. It is true that inconsistent pleas can be made in pleadings but the effect of

¶35

Page No.# 6/11

¶36

substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace the plaintiff completely from the admission made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court.”

¶37

The learned counsel for the petitioner has also placed reliance on the case of Heeralal vs. Kalyan Mal & Ors., (1998) 1 SCC 278 to project that an amendment of written statement which would have the effect of displacing plaintiff’s case and cause him irreparable prejudice was not permissible.

¶38

Per contra, the learned senior counsel for the respondent No.1 has submitted that in this case in hand, a portion of the suit land was acquired by the Govt. in the E&D Department for construction of embankment road and therefore, the erstwhile path had ceased to exist from the south eastern boundary of the land of respondent No.1 by creation of the embankment of E&D Department which is also the border road between India and Bangladesh, as such, only that factor was explained which had earlier escaped mention in the written statement. It is submitted that this fact came to light only after the husband of the respondent No.1 along with other family members were impleaded as defendents in the suit and in the said connection while preparing the written statement on their behalf, some documents were searched out which were earlier not known to the respondent No.1 and accordingly, from the subsequently procured documents, it had come to the notice of the respondent No.1 that there were few mistakes in the written statement submitted by her. It is further submitted that on the date when the impugned order passed, the suit was till at the appearance stage and, as such, the hearing of the suit had not commenced. Hence, the nature of amendment would not cause any prejudice to the petitioner. It is submitted that the cases cited by the learned counsel for the petitioner were not applicable under the facts of the present case. In support of his submissions, the learned senior counsel for the respondent No.1 has placed reliance on the case of Sushil Kumar Jain (supra) and Raj Kumar

¶39

Page No.# 7/11

¶40

Bhatia vs. Subhash Chander Bhatia, (2018) 2 SCC 87.

¶41

It is seen that it has been specifically mentioned in the impugned order that the suit was in the appearance stage. Therefore, although the application for amendment was filed after 4 (four) years of filing of the written statement, yet the suit was not ready for hearing.

¶42

It would be relevant to quote paragraph 10 and paragraph 6 of the case of Raj Kumar Bhatia (supra) decided by Full Bench of the Supreme Court of India:-

¶43

“10. In the original written statement, the appellant had set up the plea that the property in dispute was in the nature of joint family property and that even after the alleged deed of relinquishment, parties were living together as members of a joint hindu family. The written statement inter alia contains the following averments:

¶44

“10...The property is the joint family property. The sister of the respondent is married and well settled at her matrimonial home...

¶45

The defendant, plaintiff and the said S C Bhatia were jointly occupying the said property as being the undivided joint family property. That even after execution of the alleged relinquishment dee the abovesaid parties were living as joint family and the suit property being the undivided joint family...

¶46

That all family members were using ground floor, first floor and second floor jointly as undivided joint family property.

¶47

”In paragraph 12 of the written statement, the appellant has set up an oral family arrangement, thus:

¶48

“12...That acting upon the oral family arrangement, an amount of Rs. 6,00,000/- was taken out of the common fund of the Joint Hindu Undivided Family. The said amount has been handed over to Dr R C Bhatia and Shri Shakti Bhatia both residents of Modi Nagar, U P on interest. The said two persons are regularly paying interest to the plaintiff.”

¶49

Page No.# 8/11

¶50

In “the reply on merits”, the appellant has averred that:

¶51

“2...The defendant is in possession of the first floor, second floor and terrace of the said property as owner as per the oral family settlement of the undivided Joint Hindu Property...

¶52

That all other assets movable as well as immovable including the factory in the name and style of Rattan Industries situated at 18 DLF Industrial Modi Nagar, are still in joint possession and ownership and no division on metes and bounds has taken place. Though the “said property” has been divided by mets and bound as per the oral family armament. The plaintiff has made the present averment at the behest of her younger son Shri S C Bhatia with an ill intention and motive to deprive the defendant of his lawful occupation. That as per the said oral family arrangements, an amount of Rs. 6 lacs from joint funds has been handed over on interest to Dr R C Bhatia and Smt Shakti Bhatia, son in law and daughter of the plaintiff. That R C Bhatia and Smt Shakti Bhatia have been regularly paying interest to the plaintiff on the said amount.”

¶53

“6. By the proposed amendment, the appellant inter alia sought to introduce the following averments in the written statement:

¶54

“22. That as a matter of fact the property in question is the ancestral, joint Hindu Family Property as initially in view of the pleadings as well the same was purchased by Desh Raj Bhatia, grandfather of the plaintiff No. 2 and the defendant. After the death of Desh Raj Bhatia, who died intestate, the suit property was inherited by all the legal heirs namely Smt. Rajwanti Bhatia (widow), Sunita Rani Bhatia (Daughter), Walaityi Ram Bhatia (Son), Om Prakash Bhatia(Son), Tilak Raj Bhatia (Son), Ratan Lal Bhatia (son), Smt Sita Virmani (daughter), Smt Shakuntala Bhatia (daughter), Jagdish Lal Bhatia (son). All the said legal heirs have relinquished their rights in favour of their widow mother Smt. Lajwanti Bhatia. Thereafter, Smt Lajwati Bhatia before her expiry, have executed a Will in favour of Ratan Lal Bhatia, who is the father of the plaintiff No. 2

¶55

Page No.# 9/11

¶56

and the defendant and after death of Smt. Lajwanti Bhatia, the suit property was inherited by Ratan Lal Bhatia..

¶57

That it is an admitted position that on the death of Ratan Lal Bhatia, he was survived by his widow Shara Rani Bhatia, plaintiff No. 2, Subhash Chander Bhatia, defendant Raj Kumar Bhatia and one daughter namely Smt. Shakti Rani Bhatia and one daughter namely Smt Sakshi Rani Bhatia and the plaintiff No. 2, defendant and their sister was also having their two children. It is undisputed position that Ratan Lal Bhatia died intestate and the assets as well as the properties left behind by him stands inherited equally in the name of his legal heir and thus the properties left behind by Ratan Lal Bhatia become the coparcenary property for the rights of the grand children of Ratan Lal Bhatia. It is submitted that the grand children of Ratan Lal Bhatia have derived their coparcenary rights in the properties left behind by Ratan Lal Bhatia. Meaning thereby in case of plaintiff No. 2, although he derived 1/4thshare in the suit property but legally his own son and daughter being coparcener then his share shall be terms as 1/12theach and likewise the share of defendant which he derived as 1/4thon the death of his father shall also be deemed as 1/12theach with his two sons and the share of Sharda Rani Bhatia which she derived as 1/4this also to be legally deemed as 1/12theach along with her sons and daughter.”

¶58

In light of the amendment allowed, the Supreme Court of India had given its findings at paragraph 11 to 13, which is quoted below:-

¶59

“11. This being the position, the case which was sought to be set up in the proposed amendment was an elaboration of what was stated in the written statement. The High Court has in the exercise of its jurisdiction under Article 227 of the Constitution entered upon the merits of the case which was sought to be set up by the appellant in the amendment. This is impermissible. Whether an amendment should be allowed is not dependent on whether the case which

¶60

Page No.# 10/11

¶61

is proposed to be set up will eventually succeed at the trial. In enquiring into merits, the High Court transgressed the limitations on its jurisdiction under Article 227. In Sadhna Lodh v National Insurance Company, (2003) 3 SCC 524, this Court has held that the supervisory jurisdiction conferred on the High Court under Article 227 is confined only to see whether an inferior court or tribunal has proceeded within the parameters of its jurisdiction. In the exercise of its jurisdiction under Article 227, the High Court does not act as an appellate court or tribunal and it is not open to it to review or reassess the evidence upon which the inferior court or tribunal has passed an order. The Trial Court had in the considered exercise of its jurisdiction allowed the amendment of the written statement under Order 6 Rule 17 of the CPC. There was no reason for the High Court to interfere under Article 227. Allowing the amendment would not amount to the withdrawal of an admission contained in the written statement (as submitted by the respondent) since the amendment sought to elaborate upon an existing defence. It would also be necessary to note that it was on 21 September 2013 that an amendment of the plaint was allowed by the Trial Court, following which the appellant had filed a written statement to the amended plaint incorporating its defence. The amendment would cause no prejudice to the Plaintiff.

¶62

In the view which we have taken, it has not become necessary to consider the alternative submission of the appellant namely, that recourse taken to the jurisdiction under Article 227 by the respondent after filing an application for review before the Trial Court was misconceived. Since the matter has been argued on merits, we have dealt with the rival submissions.

¶63

Hence, on a conspectus of the facts and having due regard to the nature of the jurisdiction under Article 227 which the High Court purported to exercise, we have come to the conclusion that the impugned judgment and order is unsustainable. We accordingly allow the appeal and set aside the judgment of the High Court. The order passed by the Trial Court allowing the amendment of the written statement is accordingly affirmed.”

¶64

Page No.# 11/11

¶65

On a comparative reading of the relevant statement made in the written statement vis- a-vis a proposed amendment as cited above, this Court is of the considered opinion that the nature of amendment as proposed does not amount to displacing the appellant from his case in the plaint. The defence appears to be an explanation which is claimed to be based on documents on which the newly impleaded defendants, being the husband and other family members of the respondent No.1 had acquired for drafting their written statement. Therefore, as the prayer for amendment was made before commencement of trial, it cannot be said that the learned trial Court had exercised jurisdiction not vested by law, the impugned order does not suffer a vice of perversity and the view taken by the learned trial Court is quite plausible and therefore, this is not found to be a fit case where a different view of the Court can be substituted for the plausible and acceptable view of the learned trial Court. The learned trial Court had hold that the amendment is required to be allowed for the proper adjudication of the suit and the proposed amendment will not cause any irreparable loss to the petitioner herein or change the nature of the suit. It is also seen that the learned trial Court was conscious of the fact that the suit was at the appearance stage. Accordingly, having relied on the case of Raj Kumar Bhatia (supra), the cases cited by the learned counsel for the petitioner is not found to be applicable on the facts of the present case.

¶66

Accordingly, this petition stands dismissed.

¶67

Both parties who are duly represented by their respective learned counsel shall appear before the learned trial Court on 03.02.2020 without any fresh notice, and by producing a certified copy of this order, seek further instructions from the said learned Court.

¶68

JUDGE

¶69

Comparing Assistant

Abhijit Roy v. Smti Sheuli Sarma Chakraborty and 2 Ors.

Case brief

What is this about?

What did the court decide?

Abhijit Roy v. Smti Sheuli Sarma Chakraborty and 2 Ors.

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

The Union of India Vs M/S. Raitani Engineering Works Pvt. Ltd.

M/S. Purshuttam Tea Industries Co. Pvt. Ltd. and Anr. Vs Assam Power Distribution Company Ltd. and 5 Ors.

National Insurance Company Limited Vs Smt Bina Rani Nath and 2 Ors.

Anil Chandra Paul Vs M/S. Shyam Sundar Choudhury

Subhasjit Dutta Vs Biswajit Adhikary and Anr.

Mojmul Haque Vs the State of Assam