Judgment & Order (Cav)

1. Heard Mr. S. Islam, the learned counsel for the petitioner. Also heard Mr. A. Ikbal, the learned counsel appearing for the respondent nos. 1, 3, 4, 5, 6, 8 & 12.

2. These applications are filed under Article 227 of the Constitution of India read with Section 151 CPC challenging the impugned order dated 02.03.2024 passed by learned Civil Judge (Junior Division), Gossaigaon in Mis.(J) Case No. 69/2023 and Mis.(J) Case No. 70/2023 arising out of Title Suit No. 16/2021.

3. It is submitted by Mr. Islam that the father of the respondent nos. 1 to 5 namely Daraj Ali Sk has instituted a Title Suit No. 6/2015 before the learned Civil Judge, Kokrajhar for declaration of right, title and interest and khas possession over the suit property by evicting/removing the petitioner/defendant from the suit property by demolishing the structures standing on the suit property over the land measuring 3 Kathas 13 Lechas out of 2 Bighas 1 Katha of land from the schedule mentioned in the plaint. Then the present petitioner appeared in this case by filing their Written Statement (WS) and denied the claim of the plaintiff/respondent with a further claim that the defendant had the right, title and interest over the suit land as well as over the entire land purchased from one Baser Ali.

4. Thereafter the case was transferred to the Court of learned Munsiff after extension of the pecuniary jurisdiction and thereafter case was re-numbered as Title Suit Case No. 16/2021. At the time of filing the WS, the petitioner/defendant had handed over all the relevant documents to their engaged counsel but the earlier engaged counsel did not submit those documents before the learned Trial Court and it has come to the notice of the newly engaged counsel after the case being transferred to the Court of learned Munsiff. After verification of records, relevant documents were submitted at the time of filing DWs by the petitioner/defendant and also marked as exhibits. Thereafter on 07.01.2023 the petitioner also filed a petition under Order VIII Rule IX read with Section 151 CPC with a prayer to allow the defendant/petitioner to file their additional Written Statement as at the time of filing their earlier Written Statement the engaged counsel did not submit some vital documents. The plaintiff/respondent accordingly filed their written objection in Misc.(J) Case No. 5/2023 and after hearing both the parties the learned Trial Court below vide its Order dated 19.08.2023 had rejected the prayer of the petitioner in Misc.(J) Case No. 5/2023.

5. Thereafter on 05.10.2023 the petitioner had filed two petitions before the learned Trial Court below under Order VI Rule XVII read with Section 151 CPC for amendment of the Written Statement which is registered as Misc.(J) Case No. 70/2023 and another petition file on the same day under Order XI Rule 14(6) read with Section 151 CPC which is registered as Misc.(J) Case No. 69/2023 for granting leave to the defendant to submit some additional documents. It is stated in the amendment petition that there are certain material facts left to be mentioned in Serial No. 11 and there are some mistakes in describing the land. In the same time, it is also stated in the petition filed under Order XI Rule 14(6) for seeking leave to file some additional documents which could not be furnished at the time of filing their WS at the subsequent stage.

6. The proposed amendment was “the purchaser of land Sarada Devi (in the year 1980) who bought the suit land from Lt. Joyed Ali Sk and Lt. Abdul Wahed Sk by a registered sale deed and thereafter Md. Baser Ali Sk purchased the suit land from Sarada Devi (in the year 1987) and taken mutation in his name. Later on Surat Ali bought the said land from Md. Baser Ali Sk on 08/11/2002 by an unregistered sale deed. Lastly Surat Ali mutated the said plot of land by field mutation. The relevant documents Xerox copy is enclosed herewith.”

7. But, the learned Trial Court below after hearing the parties had rejected the prayer of the petitioner in both the petitions vide its impugned order dated 02.03.2024.

8. It is further stated that during the pendency of the said suit, the plaintiff Daraj Ali Sk expired and in his place his four sons and one daughter i.e. the respondent nos. 1 to 5 were substituted vide its order dated 07.12.2020. He further submitted that on 11.07.2018 also the petitioner filed an application under Order XIII Rule I read with Section 151 CPC before the learned Civil Judge, Kokrajhar for acceptance of the original documents submitted by him in the Court. But, the said prayer was also rejected by the learned Court below vide its Order dated 07.05.2019. Thereafter the petitioner approached this Court which was numbered as CRP(IO) No. 232/2019 challenging the order dated 07.05.2019 passed by learned Civil Judge, Kokrajhar which was listed before this Court on 26.02.2020. But, the same was withdrawn with a liberty to file an appropriate application for amendment of the Written Statement.

9. Being aggrieved and dissatisfied with the orders passed by the learned Trial Court below dated 02.03.2024 in Misc.(J) 69/2023 and Misc.(J) Case No. 70/2023, these two revision petitions have been filed for setting aside and quashing of the said orders.

10. Mr. Islam further submitted that it was only on the fault of the earlier engaged counsel who did not submit the relevant documents which was produced before him by the petitioner and the defect has come to the notice of the newly engaged counsel after transfer of the case before the learned Munsiff and for which some of the documents were already annexed along with the DWs and which were also marked as Ext.-1 & 2 at the time of filing the evidence of affidavit of the DWs. He further submitted that one sale deed dated 23.09.1980 and a report dated 10.05.2022 of Senior Sub- Registrar, Dhubri were annexed and marked as Exts.- 1 & 2 and those documents are very much essential for proper adjudication of the case. But, without considering this aspect of the case the learned Trial Court below had rejected the prayer for amendment vide its Order dated 02.03.2024.

11. Mr. Islam further submitted that the Court at any stage of the proceeding can allow the amendment of the pleadings, if it is necessary for the purpose of determining the real question in controversy between the parties. In the present case the amendment of the pleadings i.e. the Written Statement is very essential as some mistakes in mentioning some of the vital documents were left which were produced by the petitioner before the earlier engaged counsel. But, only due to inadvertent mistake of the engaged counsel those documents were not brought in the Written Statement and apart from that there are some vital omission in the WS which is very essential for amendment as it is necessary for the purpose of determining the real question in controversy between the parties. In that context he also cited the decision of Hon’ble Supreme Court passed in Civil Appeal arising out of Special Leave Petition (Civil) No. 30324/2019 [ Dinesh Goyal @ Pappu v. Suman Agarwal (Bindal) & Ors.] and emphasized in paragraphs 6 and 11 of the said judgment.

12. In the same context he also relied in another decision of Hon’ble Supreme Court, reported vide 2008 Legal Eagle (SC) 575 and emphasized on para 15 of the said judgment which reads as under:-

                   “15. Insofar as the principles which govern the question of granting or disallowing amendments under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the proceedings. In Pirgonda Hongondal Patil v. Kalgonda Shidgonda Patil & Ors., AIR 1957 SC 363; 1957 Legal Eagle(SC) 13 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.”

13. Mr. Islam accordingly submitted that if the petition for amendment of the WS is not allowed at this stage and if the petitioner/defendant is not allowed to exhibit some of the vital documents, prejudice will be caused to the petitioner and that apart those documents are also necessary for the proper adjudication of the matter as well as the amendment is also necessary for determining the real question of controversy between the parties. Mr. Islam accordingly submitted that the present petition may be allowed by setting aside and quashing the order dated 02.03.2024 passed by learned Munsiff whereby the prayer for amendment as well as prayer for filing additional documents were rejected by the Court.

14. Mr. Ikbal, the learned counsel for the respondent/plaintiff submitted in this regard that the present petition for amendment was filed subsequent to the rejection of the earlier application filed by the present petitioner under Order VIII Rule IX read with Section 151 CPC for submission of additional Written Statement as well as another application was also filed on 11.07.2018 under Order XIII Rule 1 & 2 read with Section 151 CPC seeking leave of the Court to submit some documents. Those two petitions were already rejected by the learned Trial Court below and after rejection of those two petitions they filed their evidence of affidavit of the DWs wherein they introduced this new fact of purchase of the land and brought some documents which were also exhibited even without bringing those documents at the time of filing of WS and even after rejection of the two earlier petitions filed by the petitioner/defendant. After rejection of those earlier two petitions, the present petition has been filed with a same intention to bring those documents with a prayer for amendment of the Written Statement though the prayer for filing of the additional Written Statement was rejected by the learned Trial Court below. Even after rejection of those two earlier petitions as well as the petition for amendment, the petitioner had already marked and exhibited their documents, which were not even in their pleadings. He further submitted that praying for filing the amendment W.S. is only to fill up the lacuna which will change the nature and character of the case and introduction of these documents will change the nature of the case and considering those aspects the earlier petitions were rejected by the learned Trial Court below. He further submitted that though the prayer for filing the additional document was rejected by the Court, the petitioner/defendant had introduced those documents while filing their affidavit of evidence to the DWs. Thus, in spite of rejection of the earlier prayer, the defendant with the same view had filed the prayer for amendment which was rightly rejected by the learned Trial Court below and if the amendment is allowed at this stage by allowing the defendant/petitioner to introduce those documents which were not even in the pleading will cause prejudice to the plaintiff/respondent in the same time will also change the nature and character of the suit. Mr. Ikbal accordingly submitted that the learned Trial Court below has rightly rejected the prayer for amendment which was filed after rejection of two earlier applications by the learned Trial Court below.

15. Hearing the submissions made by learned counsel for both sides, I have also perused the case record and the orders along with the annexures filed along with the petitions. From the record as well as from the submissions made by the learned counsel for the parties it is seen that initially the petitioner/defendant filed a petition on 07.01.2023 under Order VIII Rule IX read with Section 151 CPC with a prayer to allow the defendant/petitioner to file their additional Written Statement as at the time of filing their Written Statement, the earlier counsel did not submit some vital documents. But, after rejection of the said prayer made by the petitioner he filed these two petitions, one for seeking the leave of the Court for filing the additional document as well as petition for amendment of the Written Statement in Order VI Rule 17 CPC. Thus, it is seen that after rejection of his earlier petition for additional Written Statement and for submission of the documents, these two petitions have been filed, one for praying amendment and another seeking leave for filing some new documents only with a view to introduce some documents and some statements which were not pleaded at the time of filing their Written Statement nor there was any pleading in respect of those documents which were prayed to furnish subsequently through those petitions.

16. But, before filing those petitions the petitioner/defendant had filed their DWs mentioning about those documents which were also marked as exhibits even without introducing those documents in their WS and the said affidavit of evidence was filed in the year 2022 suppressing the fact that those documents were not even mentioned or produced before the Court, they tried to introduce those documents through affidavit of evidence and accordingly marked as exhibits. In the same time, it is also seen that the petitioner did not challenge the order of rejection of earlier petitions and thereafter the petition for amendment is filed only with a view for introduction of those documents which they have already marked as exhibits at the time of filing the DWs in the year 2022 itself.

17. It is a settled law that the amendment can be allowed at any stage of the proceeding if it is necessary for determining the real question of controversy between the parties. But, while allowing the petition for amendment, the Court is to be cautious as to whether the petitioner was not in a position to bring those facts/the documents in the pleadings in spite of due diligence. But, here in the instant case it is very apparent from the record as well as from the annexures that even without introducing or bringing those documents on record and suppressing those facts they have filed their affidavit in evidence in the year 2022 and thereafter only those petitions were filed including the petition for amendment only with a view to introduce those documents which would change the nature and character of the case. Further, it is seen that after filing of their evidence in affidavit in the year 2022, these two petitions have been filed only with an intention to introduce some new facts as well as some new documents in the case wherein the prayer for submission of those documents and additional Written Statement was earlier rejected by the Court. Thus, it is seen that the petitioner/defendant has not come before the Court with clear hands and after lapse of more than 8 years they have come with these petitions with a view to introduce some new documents and new facts in the case. More so, the petitioner did not challenge those rejection orders passed earlier by the Court whereby the prayer for filing of the additional Written Statement as well as filing of the documents were rejected by the Court.

18. In view of the above, this Court is of the opinion that the learned Trial Court below committed no error or mistake by rejecting the prayer for amendment of the WS as well as rejecting the prayer for filing additional document and hence this Court finds no reason to make any interference in the order dated 02.03.2024 passed in Misc.(J) Case No. 69/2023 and Misc.(J) Case No. 70/2023 by the learned Court of Munsiff, Kokrajhar.

19. With the above observations, both the civil revision petitions stands disposed of.