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Narendra Nath Dutt Vs. Jitendra Nath Dutt and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 63 of 1957
Reported inAIR1959Cal62
ActsCode of Civil Procedure (CPC)
AppellantNarendra Nath Dutt
RespondentJitendra Nath Dutt and ors.
Appellant AdvocateR.C. Deb and ;P.N. De, Advs.
Respondent AdvocateSubimal C. Roy and ;M.M. Sen, Advs. for respondent No. 3 and ;Sambhu C. Ghose, Adv. for ;Respondent Rabin Dutt
DispositionAppeal dismissed
Cases ReferredUpendra Narain Roy v. Janaki Nath Roy
- .....mallick, j., dated 19-3-1957, whereby he allowed respondent no. 3, sm. suprova dutta, to amend her written statement in a partition suit to which she had been added as a party some time after its institution. the appellant, who is another of the defendants in the partition suit, contended before the learned trial judge that the amendment ought not to be allowed and, having failed with his objection there, has now appealed. 3. the subject-matter of the partition suit is the estate left by one jogendra lal dutt, who died intestate on 21-10-1926, without leaving any will. he left him surviving five sons, namely, jitendra, rabindra, narendra, nripendra and upendra as also his widow, sm. narayan kumari. nripendra died childless and intestate some time in 1930 and narayan kumari died intestate.....

P. Chakravartti, C.J.

1. A preliminary objection has been taken by Mr. Roy on behalf of respondent No. 3 that this appeal is not maintainable. In my opinion, the objection ought to prevail.

2. The appeal is against an order of Mallick, J., dated 19-3-1957, whereby he allowed respondent No. 3, Sm. Suprova Dutta, to amend her written statement in a Partition Suit to which she had been added as a party some time after its institution. The appellant, who is another of the defendants in the Partition Suit, contended before the learned trial Judge that the amendment ought not to be allowed and, having failed with his objection there, has now appealed.

3. The subject-matter of the Partition Suit is the estate left by one Jogendra Lal Dutt, who died intestate on 21-10-1926, without leaving any will. He left him surviving five sons, namely, Jitendra, Rabindra, Narendra, Nripendra and Upendra as also his widow, Sm. Narayan Kumari. Nripendra died childless and intestate some time in 1930 and Narayan Kumari died intestate in 1939. In 1953, Jitendra filed a suit against his three surviving brothers for partition of the joint estate and set out in a schedule to the plaint the properties which he considered to be joint family properties. In that suit Narendra, the third of the sons of Jogendra, filed his written statement in August, 1953 and he alleged in paragraph 15 of the written statement that Rabindra had built a honeat No. 74A Bhupendra Bosc Avenue in the be-nami of his wife, but with joint family funds. Some time thereafter, Upendra, the fourth brother, died and a suitable amendment of the plaint was made. We are informed that, for some reason or other, there was next a general order, permitting parties to file additional written statements. The appellant Narendra availed himself of that order and filed an additional written statement in February, 1955. In paragraph 8 of that statement, he elaborated what he had already alleged in paragraph 15 of his earlier statement and stated that the house at No. 74 Bhupendra Bose Avenue also appertained to the joint family estate in which Sm, Suprova Dutta, in whose name the house stood, had no beneficial right or interest. Having filed that additional written statement, the appellant applied for the addition of Sm. Suprova Dutta as a party to the suit and by an order made on 18-7-1956, she was added.

4. The written statement of Sm. Suprova Dutta was filed on 21-8-1956. In paragraph 3 of that statement, she claimed the house at 74A Bhupendra Bose Avenue as her Stridhan property, the land according to her, having been acquired and the house built wholly with money belonging to herself. After asserting her title, she added in paragraph 5 that the appellant's claim to the house was barred by the law of limitation and that he had at all material times knowledge of the property having been purchased and owned by her. It appears that after she had filed that written statement, she was advised that the averments made therein ought to be supplemented and, accordingly, she made an application for leave to amend her written statement so as to introduce a case of adverse possession. The amendment she proposed to make was to add a new paragraph, numbered 5(a), containing the statement that since the acquisition of premises No. 74A Bhupendra Bose Avenue, she had been in possession and enjoyment of the property openly, peaceably and as of right with the fullest claim to ownership and title and without any interference by the appellant or by anybody else. A further amendment sought by her was to add to the allegation contained in her original written statement that the appellant's case was barred by the law of limitation, an allegation that it was also barred by adverse possession. Both these amendments were allowed by Mallick J., but the appellant contends that he wrongly allowed them to be made.

5. On behalf of respondent No. 3, Sm. Suprova Dutta, Mr. Roy contended before us that, by the order appealed from, no question, touching the merits of the controversy between the parties, had been decided and, therefore, it could not be said that the order amounted to a judgment and was as such appealable. He has called our attention to the decision of Sarkar, J, and myself in the case of M. B. Sirkar and Sons v. Powell and Co., : AIR1956Cal630 , and submitted that the present case comes within the general rule laid down in that case and not within the exception then recognised. If, by the order complained of, some question of substance relating to the controversy in suit had been decided, whether directly or indirectly, but, nevertheless, finally, so far as the trial Court was concerned, it might be contended that the order, although an order allowing an amendment of written statement, was a judgment and, therefore, an appeal from it would lie under Clause 15 of the Letters Patent. Mr. Roy contended that no such question had been decided by the order appealed from in the present case and, indeed there had been no decision of anything at all and, therefore, it could not possibly be said that the learned Judge had passed a 'judgment'.

6. In my opinion, Mr. Roy's contention is, on the facts of this case, plainly right. Mr. Dev attempted to persuade us that the exception mentioned by Mr. Roy was not the only exception made by the case on which he was relying, but that the case had also decided that if an amendment affected some right accrued to another party or prejudiced him otherwise, even then, an appeal would lie from the order permitting the amendment. The proposition on which Mr. Dev concentrated was a proposition quoted-from an earlier decision of the Court in the case of Upendra Narain Roy v. Janaki Nath Roy, ILR 45 Cal 305: (AIR 1919 Cal 904) (B), and he relied particularly on the words 'or otherwise prejudices him'. I need hardly point out that the word 'prejudice' must be read in relation to the context in which it was being used and it cannot certainly be taken to mean that if any embarrassment of any kind was caused by an amendment to another party to the suit, that by itself would be sufficient to make the order permitting the amendment a judgment. What Woodroffe, J., was trying to do in the earlier case was to repel the contention that the order, allowing the amendment in that case, was a judgment and what he said had a clear reference to the terms of Clause 15 of the Letters Patent. When he said of the order before him that it did not either affect the rights of the other party or otherwise prejudice him, lie obviously meant that it did not prejudice him in the sense of concluding him with respect to any matter in controversy in the suit, so far as the trial Court was concerned. He was certainly not using the word 'prejudice' in a general or popular sense.

7. Mr. Dev contended that the case introduced into the written statement by the amendment was plainly inconsistent with the case originally made and that if it was so, rights of his client were certainly affected by its introduction. In my view, this contention proceeds upon a misconception of what rights are contemplated by the well-known definition of 'judgment'. The right of the appellant to contend in the suit that respondent No. 3 could not possibly succeed on the fresh case sought to be made by her has in no way been affected by the amendment allowed. The controversy between the parties as to whether the appellant's right to the house in question has or has not been extinguished by adverse possession remains to be decided in the suit and has in no way been decided. Mr. Dev contended that while that was so, his client was concluded by the learned Judge's order at least to the extent that it would no longer be open to him to contend that respondent No. 3 should not be allowed to plead an inconsistent case and, therefore, in so far as he was now being prevented from holding respondent No. 3 to her original case, his right to fight respondent No. 3 on the single issue raised by her original written statement was being prejudiced. I cannot assent to that contention. When the definition of 'judgment' speaks of a decision of a question touching the merits of the controversy between the parties, it means controversy regarding the rights to the subject-matter of the suit or matter and not controversy about the grounds upon which such rights are asserted or denied. As I pointed out in my judgment cited today by Mr. Roy, in the case of a plaint, it was always thought that if an amendment merely allowed the plaintiff to state a new cause of action or to ask a new relief or to include a new ground of relief, an order permitting such an amendment decided nothing and affected no rights, because the right of the plaintiff's adversaries to contest his claim on the new cause of action or to deny his right to the new relief or to challenge the new ground on which the relief was being asked. was in no way curtailed or affected or abridged. What the order decides in such a case is that the plaintiff will be allowed to make these claims and not that the claims were being rightly made; and, similarly, even when an amendment of a written statement introduces a new defence, an order permitting the amendment merely decides that the particular defendant shall he allowed to set up that plea, but not that the plea is well-founded. As has been said, in such cases, the order permitting the amendment is merely an order regulating the procedure of the Court regarding the manner in which the parties will state their cases to it and, therefore, their substantive rights are in no way affected by such an order. If the substantive rights, which are the rights in controversy between the parties in the suit or cause or matter, an: not affected by an order permitting an amendment, such an order cannot amount to a judgment and. therefore, cannot be appealable. The case in 60 CWN 840 (A) was a very special case, because there the plaintiff, who had brought his suit against a firm, was trying to bring in a company in the place of the firm at a date when no suit against the company would be brought and he was trying to make the change by an amendment of the plaint so that the amendment, if allowed, would refer back to the date of the suit and the bar of limitation would thereby be avoided. An order for an amendment would clearly affect the rights accrued to the company by efflux- of time. The order before us, however, is very different in character. In my view, the order in the present case only permits respondent No. 3 to make the case which she was seeking to make by her amendment and except that respondent No. 3 will be entitled on the strength of that order to try to prove that plea, it has no further : effect on any rights of anybody. In that view of the order, I do not consider it necessary to examine the 'further contention of Mr. Roy that no new case had been sought to be introduced by the amendment at all, but only what had been implicit in the original written statement was being sought to be made explicit.

7a. For the reasons given above, the preliminary objection ought to succeed and this appeal is, in my view, not maintainable. It is, accordingly, dismissed with costs to respondent No. 3.

8. Certified for two Counsel.

9. The order of stay of further proceedings in the suit shall stand automatically vacated.

S.C. Lahiri, J.

10. I agree.

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