Allowed

Sridam Biswas v. Nilkamal Biswas and Ors.

Tripura HC1 Aug 2017CRP/39/2017

Case brief

AI extract

What is this about?

The High Court of Tripura allowed petitions for condonation of delay and permitted amendment of written statements under Order VI Rule 17 CPC. The court held that the amendment was necessary to determine the real controversy, noting the discovery of sale deeds and mutation via RTI. Directions were issued for framing additional issues and filing of costs.

What did the court decide?

Petitioners permitted to amend written statements; trial court directed to frame additional issues if necessary; plaintiffs permitted to file additional examination-in-chief; Rs. 2,000 costs payable.

Sridam Biswas Vs Nilkamal Biswas and Ors. — Property and Title | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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CRP 38 of 2017

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Sri Sridam Biswas ,

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son of late Sukhamoy Biswas, resident of North Tulamura, P.O. Jitendranagar, P.S. Kakraban, Udaipur, District- Gomati,Tripura

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… Petitioner

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Versus –

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Sri Srikanta Biswas ,

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son of late Sukhamoy Biswas, resident of North Tulamura, P.O. Jitendranagar, P.S. Kakraban, Udaipur, District- Gomati,Tripura

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Sri Umakanta Biswas , son of late Sukhamoy Biswas, resident of North Tulamura, P.O. Jitendranagar, P.S. Kakraban, Udaipur, District- Gomati,Tripura

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Sri Harikamal Biswas alias Hari Kumar Biswas , son of late Ashutosh Biswas, resident of North Tulamura, P.O. Jitendranagar, P.S. Kakraban, Udaipur, District- Gomati,Tripura

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Smt. Priyabala Mitra , wife of late Narayan Mitra, resident of Baraj Colony, Ward No.5, Belonia Nagar Panchayat, P.S. Belonia, District- Gomati,Tripura

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… Respondents

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CRP 39 of 2017

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Sri Sridam Biswas ,

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son of late Sukhamoy Biswas, resident of North Tulamura, P.O. Jitendranagar, P.S. Kakraban, Udaipur, District- Gomati,Tripura

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… Petitioner

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Versus –

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Sri Nilkamal Biswas , son of late Ashutosh Biswas resident of North Tulamura, P.O. Jitendranagar, P.S. Kakraban, Udaipur, District- Gomati,Tripura

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Sri Harikamal Biswas alias Hari Kumar Biswas , son of late Ashutosh Biswas, resident of North Tulamura, P.O. Jitendranagar, P.S. Kakraban, Udaipur, District- Gomati,Tripura

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Smt. Priyabala Mitra , wife of late Narayan Mitra, resident of Baraj Colony, Ward No.5, Belonia Nagar Panchayat, P.S. Belonia, District- Gomati,Tripura

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… Respondents

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CRP 38 of 2017; CRP 39 of 2017

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the petitioner : Mr. D.Bhattacharji, Advocate For the respondents : Mr. A. Bhowmik, Advocate Date of hearing & delivery of Judgment and Order : 01.08.2017 Whether fit for reporting : YES / NO

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: Mr. D.Bhattacharji, Advocate

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JUDGEMENT AND ORDER (ORAL)

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Heard Mr. D. Bhattacharji, learned counsel appearing for the petitioners as well as Mr. A. Bhowmik, learned counsel appearing for the respondents.

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2. Both the petitions being CRP 38 of 2017 [Sri Sridam Biswas vs. Sri Sukanta Biswas] and CRP 39 of 2017 [Sri Sridam Biswas vs. Sri Nilkamal Biswas] filed under Article 227 of the Constitution of India are consolidated for disposal by a common judgment inasmuch as an identical question of law is involved in these petitions. In CRP 38 of 2017, the petitioner has challenged the order dated 02.05.2017 passed in Civil Misc. 53 of 2017 [arising from T.S.(P) 05 of 2015] whereas in CRP 39 of 2017, the order dated 02.05.2017 passed in Civil Misc. 54 of 2017 [arising from T.S.(P) 04 of 2015] has been challenged.

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3. By filing the petition [in the respective suits], the defendant-petitioner sought to amend the written statement in view of the documents and the disclosure made on 23.03.2017 under Section 6 of the Right to Information Act, but the said petitions for amendment filed on 02.05.2017 were rejected. From the said petitions, as annexed with these petitions, it

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CRP 38 of 2017; CRP 39 of 2017

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appear that before filing of the petition, the defendant-petitioner was not aware of the various sale deeds whereby the part and parcel of the joint property was transferred without his knowledge. That apart, the defendant-petitioner was not aware that even the khatian was mutated and the new khatian in the name of the transferees were opened by the revenue authority.

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3. The plaintiff-respondents by filing their objections have stated that the defendant-petitioner was not at all diligent and filed the written statement almost after two years from the date of institution of the suit. Again they approached the trial court for seeking the amendment. According to the plaintiff-respondents, there is nothing substantive in the proposed amendment, but the same is a ploy to drag the suit unnecessarily.

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4. By the impugned order dated 02.05.2017 both the petitions being Civil Misc. 53 of 2017 and Civil Misc. 54 of 2017, [though the separate order was passed by the trial judge, but the order is exactly the same] are rejected. Therefore, there is no need to deal the orders separately so far the analogy or reasons are concerned. The Civil judge, Senior Division, Gomati Tripura, Udaipur while rejecting the prayer for amendment by the said order dated 02.05.2017 has observed that in the amendment petition nothing has been mentioned about the fact that when the defendant-petitioner got knowledge about the existence of those documents and why they have obtained those documents after expiry of such a long time and why not at the time

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CRP 38 of 2017; CRP 39 of 2017

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of filing of the written statement or prior to that. In absence of answer of such question, it cannot be said that the defendantpetitioner was diligent enough to search and find out the above facts and documents prior to commencement of the trial . Having placed reliance on Kailash vs. Nanhku reported in (2005) 4 SCC 484 and Ajendrapasadji N. Pande and another vs. Swami Keshavprakeshji N. and other reported in AIR 2007 SC 806 , it has been observed that since the trial has begun the amendment in the ordinary course cannot be allowed . It has been further observed that the plaintiff-respondents have filed their examination-in-chief and those examinations-in-chief had been supplied to the defendant-petitioner. One decision of this court in Abdul Kalam Azad vs. Amir Hossain [ judgment dated 18.11.2015 delivered in CRP 104 of 2015 ] has been extracted.

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5. This court at the beginning should observe that there is no inflexible rule whether the amendment should be allowed or not. Ordinarily, the law discourages amendment after the trial commenced, but where on due diligence exercise of the facts were not known to the parties and after filing of the written statement or at any stage come to their knowledge, they are not absolutely barred from making the petition for amendment of their pleadings. However, the amendment shall be subjected to proviso to Order VI Rule 17 of the CPC which postulates 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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CRP 38 of 2017; CRP 39 of 2017

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6. The Apex Court in Abdul Rehman vs. Ruldu and others reported in (2012) 9 Scale 582 has observed that if an application is filed after commencement of trial it has to be shown that in spite of due diligence, it could not have been sought earlier. The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow all amendment that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side .

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7. This aspect of whether the pleadings as sought to be incorporated is essentially required for determining the real question of controversy has been totally ignored by the trial court. The trial court only on the question of due diligence has rejected those petitions for amendment. On reading of the petitions filed by the defendant-petitioner, this court has come across that the defendant-petitioner has clearly stated in the petition that despite his due diligence he could not obtain those documents before 23.03.2017. But the question that has been raised by the trial court is that when the defendant-petitioner had gathered the knowledge of existence of such documents has however not been disclosed in the petition very categorically, but it has been stated that before 23.03.2017 he was not aware of the contents of those documents and as such, the knowledge according to the court has to be counted from 23.03.2017.

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CRP 38 of 2017; CRP 39 of 2017

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8. Mr. Bhattacharji, learned counsel appearing for the petitioner has submitted that the prime consideration for the amendment should have been whether the facts those have been discovered after the trial has commenced is relevant for adjudication of the real controversy before the court or not, or whether there shall be any substantive prejudice to the other party.

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9. From the other side, Mr. Bhowmik, learned counsel appearing for the respondents has submitted that there had been no diligence to discover the said facts before filing of the written statement. Even after obtaining the so-called relevant documents for determining the real controversy, as projected in the suit, the defendant-petitioner was lacking in filing the appropriate petitions sooner. Mr. Bhowmik, learned counsel has further submitted that when the trial has commenced, it cannot be said that the impugned orders suffer from any infirmity.

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10. Mr. Bhattacharji, learned counsel has in reply to the legal contention relied upon a decision of the Apex Court in Mount Mary Enterprises vs. Jivratna Medi Treat Private Limited reported in (2015) 4 SCC 182 where the Apex Court has held as under:

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“10.With regard to amendment of plaint, the following observation has been made by this Court in the case of North Eastern Railway Administration, Gorakhpur v. Bhagwan Das reported in (2008) 8 SCC 511 (SCC p.517, para 16): "16. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 C.P.C. (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the

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CRP 38 of 2017; CRP 39 of 2017

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proceedings. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and others reported in AIR 1957 SC 363 which still holds the field, it was held that all amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs."

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[Emphasis added]

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11. In these cases, the examination-in-chief has been filed by the plaintiffs. There will be definitely certain dislocation if the amendments are allowed, but considering the contents (the facts) as discovered at the instance of the defendant-petitioner, to this court it appears that those are very relevant and the pleadings based there on are essential for determining the real controversy in the suit. Hence, this court is of the considered opinion that the amendment should be allowed. Accordingly, the defendant-petitioner is permitted to amend his written statements in terms of the schedule of the amendment. The amended written statement shall be filed within 15(fifteen) days when the copy of this order shall reach to the trial court. The trial court thereafter on consideration of the amended pleadings if finds it necessary shall frame additional issue and if it is found that no such issue is required shall proceed with the trial. The plaintiff-respondents are permitted to file additional examination-in-chief in the event of framing additional issues. The plaintiff-respondent is permitted to file additional examination-in-chief or reframed examination-in-chief, if it is required in view of the amended part of the written statement. The trial court is directed to be very stringent on allowing the

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CRP 38 of 2017; CRP 39 of 2017

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adjournments inasmuch as the plaintiff has raised the issue of delay in the proceeding.

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12. With this observation and directions, these petitions are

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allowed to the extent as indicated above however subject to the payment of Rs. 2,000/- for each of the suit to the plaintiffrespondents before the next date as would be appointed by the trial court.

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There shall be no order as to costs.

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JUDGE

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Saikat

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CRP 38 of 2017; CRP 39 of 2017

Sridam Biswas v. Nilkamal Biswas and Ors.

Case brief

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Sridam Biswas v. Nilkamal Biswas and Ors.

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