Dismissed

Bimal Karak v. Bidyut Kumar Laskar

Jharkhand HC23 Aug 2021WPC/4752/2019

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition seeking amendment of a plaint in a title suit to add prayers for recovery and confirmation of possession. The Court held the amendment was barred under Order VI Rule 17 CPC as filed after trial commenced without sufficient evidence of dispossession or due diligence.

What did the court decide?

Writ petition allowing amendment of plaint was dismissed as deprived of merit and barred under the proviso to Order VI Rule 17 CPC.

Bimal Karak Vs Bidyut Kumar Laskar — Property and Title | Jharkhand HC (2021)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No.4752 of 2019

Bimal Karak

… Petitioner

Versus

Bidyut Kumar Laskar.

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Pradyut Kumar Laskar.

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Devraj Laskar.

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…. …. Respondents

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CORAM : HON’BLE MR. JUSTICE RAJESH SHANKAR

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For the Petitioner : Mr. Bhaiya Vishwajeet Kumar, Advocate For the Respondents :

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03/23.08.2021 The present writ petition is taken up today through Video conferencing.

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2. The present writ petition has been filed for quashing the order dated 22^nd April, 2019 passed in Title Suit No.33 of 2008 by the Civil Judge (Junior Division), Jamshedpur (Annexure-3 to the writ petition), whereby the petition dated 16^th January, 2019 filed by the petitioner seeking amendment in page no.1, cause title and in page no.9, in the prayer portion of the plaint was rejected. Further prayer has been made for quashing the order dated 24^th July, 2019 (Annexure-4 to the writ petition) passed in the said title suit, whereby the petition dated 26^th April, 2019 filed by the petitioner for review of the order dated 22^nd April, 2019 has also been rejected.

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3. The factual background of the case as stated in the writ petition is that the petitioner along with one Shanti Rani Laskar (mother of the respondents) purchased a piece of land under Khata No.24, Plot No.1668 a and 1668 b, Ward No.16 J.N.A.C., Mouza-Gagun Nagar, P.S. Sidhgora Jamshedpur from one Smt. Durga Rani Bose. As per the agreement dated 27^th May, 1984, the petitioner came in possession of the western portion of the land measuring an area of 34 feet x 60 feet, whereas the mother of the respondents came in possession of the eastern portion of the land measuring an area of 34 feet x 50 feet and they were continuing in exclusive possession over their respective portion of the land. However, the relationship between them subsequently got strained when the petitioner started construction over his portion of purchased land and the respondents started obstructing him. The Sub-Divisional Magistrate, Dhalbhum, Jamshedpur on the basis of the report of the Sidhgora Police Station, initiated a proceeding under Section 144 of the Cr.P.C vide Misc. Case No.811 of 1992 which was subsequently converted into a

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proceeding under Section 145 of the Cr.P.C and vide order dated 27^th September, 2006, the Sub-Divisional Magistrate, Dhalbhum confirmed the physical possession of the plaintiff/petitioner over the land in question. It was, however, observed that the parties may approach the court of competent jurisdiction for declaration of their right, title and interest with respect to the land in question, as the same was recorded in the name of State of Bihar leased to Tisco in Khatiyan. The said order of the SubDivisional Magistrate, Dhalbhum was also confirmed by the learned Sessions Judge, Jamshedpur vide order dated 1^st March, 2007 passed in Cr. Revision No.263 of 2006. Thereafter, the petitioner filed a suit being Title Suit No.33 of 2008 before Civil Judge (Junior Division)-V, Jamshedpur for a decree of permanent injunction restraining the respondents from interfering with the possession of the petitioner over the land in question. The said suit proceeded in the learned court below and the evidence of the petitioner was closed on 15^th February, 2014 whereas the evidence of respondents was closed on 16^th December, 2017. The petitioner claimed that during pendency of the said suit, the respondents started making construction over the land in question and as such, a petition dated 05^th May, 2016 was filed by the petitioner praying inter alia to restrain the respondents from making any construction over the same, however, the respondents denied the said claim of the petitioner by filing the rejoinder affidavit. The petitioner again filed a petition dated 20^th May, 2016 along with police report and requested to appoint a Survey Knowing Pleader Commissioner at his cost to verify the said fact. However, the learned court below rejected the said petition of the petitioner. As such the petitioner filed a petition dated 16^th January, 2019 under Order VI Rule 17 read with Section 151 of the CPC and prayed for amendment of the plaint to the extent of amending page no.1, cause title in the middle portion as “suit for permanent injunction, recovery and confirmation of possession as well as amendment in page no.9, in the prayer portion of the plaint after completion of paragraph (a) to be added as “for a decree of recovery and confirmation of possession in accordance with the ostensible report and order of the learned S.D.O. which are public documents u/s-74 of the Evidence Act”. The learned court below, however, vide order dated 22^nd April, 2019 rejected the amendment petition of the petitioner. The petitioner being aggrieved with

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the said order filed review petition before the said court, however, the same was also rejected vide order dated 24^th July, 2019. Hence, the present writ petition.

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4. The learned counsel for the petitioner submits that the proposed amendment will not change the nature of the suit, rather it is necessary for determination of the real controversy in question. The order dated 22^nd April, 2019 passed by the learned court below suffers from jurisdictional error, as the said court has failed to exercise the jurisdiction vested in him, rather has exercised the same with material irregularity. It is further submitted that the proposed amendment has not been sought at a belated stage but in view of subsequent event which is fully supported by the police report brought on record by the plaintiff while seeking appointment of Survey Knowing Pleader Commissioner, wherein the police had reported that a new construction was going on at the instance of defendants/respondents over the suit land.

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5. Heard the learned counsel for the parties and perused the materials available on record. The petitioner seeks direction of this Court to allow him to amend the plaint in the manner as stated above also seeking to add a prayer of recovery and confirmation of possession upon the suit land at the stage of argument.

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6. Before reverting back to the present case, it would be appropriate to go through the provisions of Order VI Rule 17 of CPC as well as the judicial pronouncements dealing with the scope and extent of allowing an amendment application.

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“17. Amendment of pleadings.—The court may at any stage of the proceedings allow either party to alter or amend his pleading in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties: Provided 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 the commencement of trial.”

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7. In the case of Salem Advocate Bar Association Tamil Nadu

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Vs. Union of India reported in (2005) 6 SCC 344 , the Hon’ble Supreme Court has held as under:-

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“26. Order 6 Rule 17 of the Code deals with amendment of pleadings. By Amendment Act 46 of 1999, this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being 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 the commencement of trial. The proviso, to some extent, curtails absolute discretion to allow

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amendment at any stage. Now, if application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object is to prevent frivolous applications which are filed to delay the trial. There is no illegality in the provision.”

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8. In the case of Ajendraprasadji N. Pande and Another Vs. Swami Keshavprakeshdasji N. and Others reported in (2006) 12 SCC 1 , the Hon’ble Supreme Court has held as under:-

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“36. Ultimately, to strike a balance the legislature

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applied its mind and reintroduced Rule 17 by Act 22 of 2002 w.e.f. 1-7-2002. It had a provision permitting amendment in the first part which said that the court may at any stage permit amendment as described therein. But it also had a total bar introduced by a proviso which prevented any application for amendment to be allowed after the trial had commenced unless the court came to the conclusion that in spite of due diligence the party could not have raised the matter before the commencement of the trial. It is this proviso which falls for consideration.

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43. Under the proviso no application for amendment shall be allowed after the trial has commenced, unless in spite of due diligence, the matter could not be raised before the commencement of trial. It is submitted, that after the trial of the case has commenced, no application of pleading shall be allowed unless the above requirement is satisfied. The amended Order 6 Rule 17 was due to the recommendation of the Law Commission since Order (sic Rule) 17, as it existed prior to the amendment, was invoked by parties interested in delaying the trial. That to shorten the litigation and speed up disposal of suits, amendment was made by the amending Act, 1999, deleting Rule 17 from the Code. This evoked much controversy/hesitation all over the country and also leading to boycott of courts and, therefore, by the Civil Procedure Code (Amendment) Act, 2002, provision has been restored by recognizing the power of the court to grant amendment, however, with certain limitation which is contained in the new proviso added to the rule. The details furnished below will go to show as to how the facts of the present case show that the matters which are sought to be raised by way of amendment by the appellants were well within their knowledge on their court case, and manifests the absence of due diligence on the part of the appellants disentitling them to relief.”

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9. In the case of Vidyabai & Others vs. Padmalatha & Another reported in (2009) 2 SCC 409 , the Hon’ble Supreme Court has held as under:-

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“10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), Parliament inter alia inserted a proviso to Order 6 Rule 17 of the Code, which reads as under:

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“Provided 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 the commencement of trial.”

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It is couched in a mandatory form. The court’s 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.

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10. Although, the court has power to allow an application for amendment at any stage of the suit which is necessary for the purpose of determining the real question in controversy between the parties yet by

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adding the proviso, certain restriction has been put to the cases where amendment applications are sought to be filed after commencement of trial. Thus, for dealing with the amendment application, the stages of the cases have been divided into two parts; one is before commencement of the trial wherein an application for amendment may be allowed to determine the real issues in controversy. The other is after the commencement of the trial where before allowing the amendment application, the court has to satisfy that the party seeking amendment has explained that in spite of due diligence he could not raise the matter before the commencement of trial. This requirement is to be mandatorily followed by the court.

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11. In the present case, the learned court below rejected the amendment petition filed by the petitioner on the ground that the same was filed after more than 11 years that too at the stage of argument without explaining any cogent reason for the same. It has also been held that the proposed amendment will change the nature of the suit and a new cause of action will arise resulting injustice and prejudice to the defendants/respondents. It has further been held that the proposed amendment is not necessary for determining the real question in controversy between the parties. 12. I have gone through the amendment petition filed by the petitioner before the learned court below which has been annexed as Annexure-1 to the present writ petition. The petitioner had contended that when no order was passed on the application for ad-interim injunction, the defendants/respondents forcefully dispossessed the petitioner from the suit land. However, he did not mention the exact date of dispossession in the said petition. Moreover, the petitioner also did not mention as to whether he had filed any other case against his alleged dispossession, so as to prima facie suggest the said fact. 13. The petitioner has also failed to bring on record before this Court any such evidence of his dispossession during the pendency of the suit in absence of which the said factual contention of the petitioner cannot be adjudged. This Court is of the view that the said application for amendment cannot be allowed with a vague plea at such a belated stage. 14. Otherwise also, the prayer for recovery and confirmation of possession as has been sought to be incorporated in the plaint goes

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contrary to the initial prayer seeking permanent injunction. As such, in absence of cogent evidence to suggest that the petitioner has been dispossessed during the pendency of the suit and has preferred the application for amendment immediately after such dispossession, the prayer for amendment cannot be allowed at the stage of argument in view of the proviso to Order VI Rule 17 CPC incorporated by the Civil Procedure Code (Amendment) Act, 2002 in the mandatory form. 15. In view of the aforesaid discussions, the writ petition being devoid of merit is, accordingly, dismissed.

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(Rajesh Shankar, J.)

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Rohit/AFR

Bimal Karak v. Bidyut Kumar Laskar

Case brief

What is this about?

What did the court decide?

Bimal Karak v. Bidyut Kumar Laskar

Case brief

What is this about?

What did the court decide?

What the court decided

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