Calcutta High Court (Appellete Side)Purbanchal Estates Pvt. Ltd vs Hiralal Sarawgee & Ors on 19 June, 2009Author:Prasenjit MandalBench:Prasenjit MandalForm No.J(2)    IN   THE     HIGH COURT AT CALCUTTA
                           CIVIL APPELLATE JURISDICTION
                                  APPELLATE SIDE

                              C.O. No. 4059 of 2007

Present :

The Hon'ble      Mr. Justice Prasenjit Mandal

                              Purbanchal Estates Pvt. Ltd.

                                       Versus

                               Hiralal Sarawgee & Ors.

For the petitioner: Mr. Surajit Mitra,
                    Mr. K. K. Boral.

For the opposite parties:            Mr.   S.   P. Roy Chowdhury,
                                     Mr.   B.   Ghosal,
                                     Mr.   U.   Dutta,
                                     Mr.   A.   Gupta,
                                     Mr.   M.   Mitra,
                                     Mr.   B.   Chowdhury.Heard On: 20.05.2009, 21.05.2009 & 12.06.2009.

Judgement On: June 19, 2009.Prasenjit Mandal, J.: This application is at the instance of the

defendant no.1/petitioner and is directed against the order no.179

dated 6th September, 2007 passed by the learned Civil Judge (Senior

Division), Third Court at Alipore in Title Suit No.115 of 2004

whereby he allowed the petition underOrder 6 Rule 17 of the Code

of Civil Procedurefiled by the plaintiffs/opposite parties.The     plaintiffs/opposite         parties    instituted    the    suit    for

declaration to the effect that the certain deed dated 25th July,

1992     executed     by    the    plaintiff      no.1    was   void      and     other
 consequential reliefs.             The plaintiffs contended in the plaint

that the plaintiff no.1 is a person of weak mind and some of the

defendants       took       advantage       of     the         same         by      exercising

misrepresentation and undue influence to have the said deed of

conveyance on the representation that the plaintiff no.1 was going

to    execute   a   Power    of    Attorney      and    so     the    signature        of    the

plaintiff no.1 was required on the said document.                                On realising

the fact of execution of the deed of conveyance instead of Power

of Attorney the plaintiffs filed the suit for the reliefs stated.

The    plaintiff      no.1      executed    another          deed      of        rectification

rectifying      certain     defects    which     crept       into     the    said     deed    of

conveyance dated 25th July, 1992.              During pendency of the suit, the

plaintiffs      prayed      for    amendment      of     the     plaint          praying     for

incorporation of certain paragraphs after the paragraph no.39 of

the    plaint   which     was     allowed   by    the     order       impugned.            Being

aggrieved by the said order, the defendant no.1 preferred this

application.Mr.   Mitra,      learned      Senior     Advocate        for        the     petitioner

contended that initially the suit was for declaration and other

consequential reliefs on the facts stated in the plaint but by way

of amendment, the plaintiffs wanted to incorporate certain facts

which could not be allowed afterwards.                       He contended that such

amendment is barred by the law of limitation and if it is allowed,

the amendment would relate to the date back of filing of the suit
 and so such amendment after the period of limitation is totally

barred by the law of limitation and thus the defendant/petitioner

acquired a valuable right. So the learned Trial Judge should have

rejected the application for amendment of the plaint.                      He also

contended that initially the suit was simply for declaration that

a certain deed is void on the ground of misrepresentation.                  But by

way of proposed amendment the plaintiffs wanted to incorporate

certain facts which were totally absent in the original plaint.

He pointed out the proposed paragraph no.39 which lays down that

the plaintiffs were governed by the Mitakhara law relating to

succession and so one co-sharer could not sell the property or

portion thereof without offering the same to his co-sharer or

other members of the family.           Moreover, the suit property being

the subject matter of trust, one co-sharer could not transfer the

same without permission of the competent court.                 He also contended

that   the   reliefs   sought    for    after    lapse     of    the   period    of

limitation   from   the   date   of    filing   of   the   suit    could   not   be

granted in view of the relief sought for by way of amendment.

According toArticle 97of theLimitation Act, such relief could

not be granted by the Court.          According toArticle 97of the said

Act, only one year is granted to opt for pre-emption.                      He has

referred certain decisions with regard to his contentions such as

(2004) 3 SCC 392, (2002) 2 SCC 445 and AIR 2008 SC 2171.On the other hand, Mr. Roy Chowdhury, learned Senior Advocate

for the opposite party, contended that the original suit was for

declaration and consequential reliefs. By way of amendment, the

plaintiffs simply wanted to make elaboration of the fact already

stated in the plaint and no new fact was incorporated in the

proposed   application   for   amendment   of   the   plaint.   He   also

contended that such amendment was sought for to settle the dispute

between the parties finally and for that reason if the proposed

amendment was granted by the Court exercising discretionary power,

according to the liberal principles in allowing the application

for amendment as per several directions of the Apex Court, the

petitioner will not be prejudiced.         He also contended that the

object of such amendment is to minimise the litigation between the

parties for making complete adjudication of the dispute amongst

them.   He also contended that whether a particular amendment is

barred by limitation or not shall be considered at the time of

trial only and not before that stage.       He referred to a number of

decisions in support of his contention such as AIR 1968 SC 956,

AIR 1969 SC 1267, (2006) 6 SCC 498, (2006) 4 SCC 385, 2007 (1) ICC

67 and 2007(2) CLJ Cal 781.After going through the rival contentions and perusing the

materials on record, I find that Mr. Mitra merely relied upon the

question of limitation and by referring the decisions cited by him

(supra) he contended that the application for amendment should not
 have been allowed by the learned Trial Judge because the effect

would be that it would take way the valuable right accrued by

lapse of time on the part of the plaintiff.Mr.   Roy   Chowdhury      submitted     in    details   about     the    basic

principles in disposing of the application for amendment of the

plaint and referred to the decisions such as AIR 1968 SC 956, AIR

1969 SC 1267, (2006) 6 SCC 498, (2006) 4 SCC 385.                   On perusal of

those decisions, I have no hesitation to hold that amendment of

plaint is a discretionary power entrusted upon the Court and such

power   is   to    be   exercised    by   the    Court   keeping    in    mind    that

proposed     amendment    would     shorten     the   litigation,      preserve   and

safeguard the rights of both the parties and to sub-serve the

needs of justice.        At the same time, court should not be unmindful

to consider the fact if the proposed amendment was intended to

prevent the defendant from getting the benefit of a right accrued

by lapse of time.        At the same time Court must not be unmindful to

take notice that prayer for amendment should not be refused on

mere technical grounds.           In the instant case, there is no doubt

that cause of action starts from the moment when the fact of

misrepresentation, undue influence, etc. was discovered.                    Here, I

find    immediately      after    detection     of    such   alleged     facts,   the

plaintiff filed the suit for the reliefs stated.                         But by the

subsequent amendment, the plaintiff wanted to incorporate certain

facts as indicated in paragraph no.39A. appearing at page no.48 of
 the application.         The plaintiff also wanted to incorporate the

fact that the property in suit could not be transferred by the

plaintiff     without    prior   permission       from    the       Court    because     the

property belonged to a Trust.                   The plaintiff also wanted to

include the prayer in the plaint to the following effect:-"Declaration that the Plaintiff No.1 has no authority to
    transfer/alienate share of the suit property that is in
    respect of a house which was the dwelling house of an
    undivided family belonging to the mother, and such sale
    is not binding on the plaintiffs."Mr. Mitra also contended that prayer for pre-emption is also

barred byArticle 97of theLimitation Acton the ground that such

right   must    be     exercised       within   one     year    from        the   date    of

registration.        The proposed application having been filed long

after   one     year     from    the     date     of     so-called          deduction     of

misrepresentation, undue influence, etc.                      Such prayer for pre-

emption could not be granted at all.All the facts relating to the execution of the impugned deed

and subsequent development are to be scrutinised at the time of

trial and before trial it cannot be decided actually whether any

undue influence or misrepresentation was caused upon the plaintiff

no.1 or whether in spite of knowing the fact of transfer of the

property in suit, the plaintiff came up with the application for

pre-emption     after    one    year    from    the    date    of    knowledge     of    the

execution.     Therefore, if the proposed amendment is considered in
 the light of the original plaint and the objection raised as a

whole I am of the view that unless and until evidence is recorded,

the question of limitation for pre-emption cannot be decided at

all.    It is a mixed question of fact and law and so at this initial

stage when trial of the suit is yet to begin, it cannot be decided

the question of limitation.           I am, therefore, of the view that so

far as the question of limitation relating to the prayer for pre-

emption as sought for shall be decided at the time of trial only

and this question of limitation is left open for decision at the

time of trial.       At present, I find that cause of action to file the

suit remains the same.              The relief sought for in the original

plaint and the relief sought for in the application for amendment

of    the   plaint   cannot    be   said   to   be     contradictory    each   other.

Rather, if the proposed amendment of the plaint is granted, it

would sub-serve the interest of justice of both the parties and

that it would serve to minimise the litigation.                      The petitioner

would be at liberty to file additional written statement to suit

his defence with regard to the proposed amendment and additional

issues shall be framed to make complete adjudication between the

parties.The defendant is not in a position to suffer irreparable loss

if the proposed amendment is allowed with the above observations

relating to limitation.         The decision reported in 2001(2) SCC 472

and    2007(2)   CLJ   Cal    781   support     such    view.   So     the   proposed
 amendment, I hold, cannot be described as totally change of cause

of action or altogether an inconsistent pleading which takes away

the earlier admission of the plaintiff.In that view of the matter, I am of the view that in allowing

the application for amendment of the plaint, the learned Trial

Judge    has   not   caused    any   miscarriage    of   justice   against   the

petitioner.      Rather, he has allowed the application for amendment

of   the plaint before        commencement    of the trial to settle         the

dispute between the parties once for all.                There is nothing to

interfere with the order impugned.With     the   above    observations,   the   present   application    is

disposed of and the learned Trial Court shall proceed with the

suit accordingly.Interim order of stay as passed in the application is hereby

discharged.Considering the circumstances, there will be no order as to

costs.Urgent xerox certified copy of this order, if applied for, be

supplied to the learned Advocates for the parties on their usual

undertaking.(Prasenjit Mandal, J.)

Later:Learned   Advocate   for   the   petitioner   prays   for   stay   of

operation of this judgment.     Upon hearing the submission of the

learned Advocates of both sides prayer for stay is considered and

rejected.(Prasenjit Mandal, J.)