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Monika Banerjee Vs. Biswabikash Sengupta - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberCivil Order No. 550 of 1985
Judge
Reported inAIR1986Cal113,90CWN858
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17
AppellantMonika Banerjee
RespondentBiswabikash Sengupta
Appellant AdvocateManindra Nath Ghosh, ;Saktinath Mukherjee, ;Madhusudan Banerjee and ;Subhra Kamal Mukherjee, Advs.
Respondent AdvocateSudhis Dasgupta, ;Syama Prasanna Roy Choudhury and ;Tapan Kumar Chakrabarti, Advs.
DispositionRevision allowed
Cases ReferredIn Haridas Aildas Thadani v. Godrej Rustom Kermani
Excerpt:
- .....was written out, the defendant put her signature acknowledging payment of rs. 15,001/-. as the rate of price of land was not mentioned in the draft receipt in terms of which the defendant had granted a receipt for the said sum of rs. 15,001/-, the plaintiff at the time of his next visit and payment on june 9, 1977 at the defendant's house, himself expressly put in writing and under his signature the offer of price he already made, namely, rs. 17,300/-per cottah as agreed upon by the parties. a xerox copy of the receipt granted by the plaintiff has been annexed to the written statement. the receipt is in the following terms :'price of plot no. 877 of lake town -owner sm. monika banerjee of 752, new alipore, calcutta-53 has been agreed upon at rs. 17,300/- (rupees seventeen thousand.....
Judgment:

M.M. Dutt, J.

1. This application under Section 115 of the Code of Civil Procedure is at the instance of the defendant, and it is directed against order No. 59 dt. Dec. 5, 1984 of the 5th Court of the Assistant District Judge, Alipore. By the said order, the learned Assistant District Judge allowed the prayer of the plaintiff for the amendment of the plaint.

2. The plaintiff has filed a suit against the defendant for the specific performance of an agreement for sale dt. May 15, 1977. It is the plaintiffs case that on May 15, 1977, the defendant agreed to sell plot No. 877, Block 'A', Lake Town, Calcutta comprising an area of 6 cottahs 14 chhataks 37 sft. for a consideration of Rs. 75,500/- and accepted from the plaintiff a sum of Rs. 15,001/- by way of earnest money. The plaintiff also paid from time to time a further sum of Rs. 13,000/- to the defendant. Further, the case of the plaintiff is that the defendant agreed to sell the disputed plot in two stages, namely, the front portion measuring 3 cottahs 4 chhataks 35 sft. for Rs. 38,500/- and the rear portion measuring 3 cottahs 10 chhataks 2 sft. for a consideration of Rs. 37,000/-. Thus, according to the plaintiff the entire plot measuring 6 cottahs 14 chhataks 27 sft. was agreed to be sold at Rs. 75,500/-. It is also alleged by the plaintiff that the draft conveyance for the front land for a consideration of Rs. 38,500/- was approved by the defendant's husband.

3. The defendant in her written statement has denied that she agreed to sell the disputed plot at or for a sum of Rs. 75,500/- as alleged by the plaintiff. The case of the defendant is that the plaintiff made an offer to purchase the disputed plot at the rate of Rs. 17,300/- per cottah. In order to show his bona fide, the plaintiff paid to the defendant a sum of Rs. 15,001/- on May 15, 1977 at the defendant's house. The plaintiff brought an handwritten draft receipt from his lawyer and requested the defendant's husband to write out the receipt exactly according to the draft. After the receipt was written out, the defendant put her signature acknowledging payment of Rs. 15,001/-. As the rate of price of land was not mentioned in the draft receipt in terms of which the defendant had granted a receipt for the said sum of Rs. 15,001/-, the plaintiff at the time of his next visit and payment on June 9, 1977 at the defendant's house, himself expressly put in writing and under his signature the offer of price he already made, namely, Rs. 17,300/-per cottah as agreed upon by the parties. A Xerox copy of the receipt granted by the plaintiff has been annexed to the written statement. The receipt is in the following terms :

'Price of Plot No. 877 of Lake Town -Owner Sm. Monika Banerjee of 752, New Alipore, Calcutta-53 has been agreed upon at Rs. 17,300/- (Rupees Seventeen thousand three hundred) per cottah net value (Rate).'

4. On April 27, 1984, the plaintiff made an application for an amendment of the plaint. In the said application, it has been stated inter alia that the defendant in her written statement disclosed a writing dt June 9, 1977 by theplaintiff containing the price per cottah of plot No. 877 which is the suit plot. It is alleged that the plaintiff missed to state the related facts leading to the said writing, and that it is necessary to state the said facts in the plaint by way of an amendment. The amendments, prayed for, are as follows :

'I. After para 1, the following para numbered as 1(a) may be added : --

1(a). The plaintiff states that at one point of time during the talks a plan was prepared showing the land in the lots, and with the object of getting the front land immediately the plaintiff offered to get it at Rs. 17,300.00 per cottah, if there was prompt sale of the property. The said offer did not materialise into completed contract. II. After para 10 the following para numbered as 10(a) may be added : --

10(a). Alternatively, if the defendant intends to rely upon the offer made by the plaintiff in respect of the front land for immediate purchase, the plaintiff is and was ready and wilting to act upon the said offer by purchasing the land at the said rate on paying the balance of the consideration without however, any prejudice to his rights and contentions. III. The following words may be aided after Clause 'b' in the prayer portion of the plaint. (b) or any other enhanced amount as the Ld. Court may determine on the basis of the rate admitted by the defendant, as referred to in para 1(a).'

5. The application for amendment was opposed by the defendant. The learned Assistant District Judge has, however, by the impugned order allowed the amendment as prayed for. Hence this application under Section 115 of the Code of Civil Procedure.

6. The learned Advocate appearing on behalf of the defendant petitioner has drawn our attention to some facts which will be stated presently. The suit was filed by the plaintiff on Aug. 16, 1979. The defendant filed her written statement on or about Feb. 28, 1980. The plaintiff filed an application for temporary injunction. The said application was opposed by the defendant by filing a petition of objection supported by an affidavit. On May 6, 1980, the plaintiff filed a counter objection, also supported by an affidavit, to the said petition of objection of the defendant. In para 10 of the counter objection, the plaintiff has reiterated that on May 15, 1977 there was an oral agreement between the plaintiff and the defendant for the sale of the disputed plot to the plaintiff for a sum of Rs. 75,500/-. In para 11, the plaintiff has denied that the plaintiff had made an offer of Rs. 17,300/- per cottah as the price of the plot. It has been further alleged by the plaintiff in para 11 as follows :

'On 9-6-77 it was represented to your petitioner by the defendant and her husband that even though specific amount had been fixed as the price of the land it would be proper to mention a figure as the price of the land in case the land had to be sold in two lots and it was also represented by the defendant and her husband at the time that the value per cottah of the suit property should be written and according to them such value per cottah would come to about Rs. 17,300/- per cottah in terms of the agreement between the parties fixing the total consideration at Rs. 75,500/-. Your petitioner had no reason to disbelieve the defendant and her husband and accepting the figure given by them your petitioner mentioned the figure in the receipt.

xxx It is denied that your petitioner himself expressly put in writing the offer of price he had already made viz., Rs. 17,300/- per cottah. Real facts are that the plaintiff then and there did not calculate arithmetically the value of land on per cottah basis taking into consideration the total price of the suit property with the total quantity of land in terms of the agreement dt. 15-5-77, and accepted the figure suggested by the defendant and her husband as your petitioner had no reason to disbelieve them at the time.'

6. In para 16 of the counter objection, the plaintiff has averrred 'It is also false that the plaintiff has agreed to pay Rs. 17,300/- per cottah. Your petitioner has already explained the circumstances under which he has written, a Xerox copy which is made annexure in the petition of objection.'

7. Thus, it appears that the plaintiffs case as sought to be made out in his counter objection to the defendant's petition of objection to the application for injunction is that the plaintiff did not calculate the value per cottah of the disputed land alleged to have been agreed to be sold at Rs. 75,500/-. But the plaintiff executed the said writing stating therein the price of the disputed plot as Rs. 17,300/- per cottah as represented to him by the defendant.

8. In the application for amendment, a completely different case has been sought to be made by the plaintiff. It has been already stated that the application for amendment has been made by the plaintiff alleging that he has missed to state the relevant facts leading to the said writing containing the price of the disputed land at the rate of Rs. 17,300/- per cottah. In the proposed amendment under para 1(a), the case of the plaintiff is that at one point of time during the talks, the plan was prepared showing the land in two lots, and with the object of getting the front land immediately the plaintiff offered to get it at Rs. 17,300/- per cottah, if there was prompt sale of the property. The said offer, it is alleged, did not materialise into a completed contract. Here, the plaintiff wants to make a completely new case giving the go by to the case which is alleged in the counter objection. It may be recalled that in the counter objection the plaintiffs case was that he did not arithmetically calculate the price of the land per cottah but, as per the representation of the defendant that although the total price of the disputed plot as agreed to be sold at Rs. 75,500/-, the price per cottah of the land would be Rs. 17,300/-, the plaintiff put it down in writing the price of the land at the rate of Rs. 17,300/- per cottah. By the proposed amendment, the plaintiff wants to make out a case that he offered to purchase the front land of the disputed plot at Rs. 17,300/- per cottah, if there was sale of the property.

9. The proposed amendment also includes an alternative case of the plaintiff under para 10(a) wherein the plaintiff has expressed his readiness and willingness to purchase the front land at the said rate of Rs. 17,300/- per cottah, if the defendant would rely upon the said offer of the plaintiff made in respect of such front land.

10. The proposed amendment also includes a prayer that the plaintiff is willing to purchase the disputed land at any other enhanced amount as the Court may determine on the basis of the rate admitted by the defendant as referred to in para 1(a), that is to say, at the rate of Rs. 17,300/- per cottah of front land.

11. The suit is for a decree for specific performance of an agreement for sale. According to the plaintiff, the disputed plot was agreed to be sold at a consideration of Rs. 75,500/-. The defendant has, however, denied that he agreed to sell the disputed plot at Rs. 75,500/-. Her case is that the plaintiff agreed to purchase the disputed plot at the rate of Rs. 17,300/- per cottah. The parties will have to prove their respective cases at the trial of the suit. The amendment of the plaint is granted where there has been any omission or a misstatement which may ultimately prejudice the plaintiff at the hearing of the suit. In such cases, the plaintiff is permitted to amend the plaint by supplying the omission and correcting any misstatement that has occurred in the plaint provided, however, by such amendment the nature and character of the suit are not changed and no prejudice is caused to the defendant.

12. In Manohar Lal v. National Building Material Supply, : [1970]1SCR22 , it has been observed by the Supreme Court as follows:

'The order passed by the High Court cannot be sustained. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however, late the proposed amendment, the amendment may be allowed if it can be made without injustice, to the other side.'

13. In Panchdeo Narain Srivastava v. Smt. Jyoti Sahay, : AIR1983SC462 , the Supreme Court allowed the amendment on the ground that the trial Judge in granting the amendment was satisfied that in order to effectively adjudicate upon the dispute between the parties, the amendment of the pleading wasnecessary. In Haridas Aildas Thadani v. Godrej Rustom Kermani, : AIR1983SC319 , the Supreme Court has laid down that the Court should be extremely liberal in framing prayer for amendment of pleading unless serious injustice or irreparable loss is caused to the other side. A revisional court ought not to lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstances. Further, it has been observed that the test for allowing amendment is to find whether the proposed amendment works any serious injustice to the other side. In that case, the plaintiff sought by way of amendment to insert a relief for recovery of possession.

14. Keeping in view the above principles laid down by the Supreme Court, we may now examine whether the learned Assistant District judge was justified in allowing the amendment. The learned Assistant District Judge has not, however, taken into his consideration the conduct of the plaintiff in making out a case in his counter objection and a completely different case in the application for amendment in regard to the price of the disputed plot. Where, on account of negligence, laches or inadvertence, there has been an omission to plead a case in the plaint, the Court will generally allow amendment, provided it is not mala fide and does not cause any prejudice to the defendant. But here the plaintiff sought to make out different cases at two different stages, in the written statement, the defendant has specifically alleged that the price of land was agreed to be at the rate of Rs. 17,300/- per cottah. The plaintiff could have prayed for an amendment within a reasonable time of the filing of the written statement. He, however, did not make any application for amendment. On the other hand, in his counter objection supported by an affidavit, he explained his writing under his signature containing the statement about the price of the disputed plot at the rate of Rs. 17,300/- per cottah, as having been done on the representation of the defendant's husband. In the amendment petition, the plaintiff comes out with a different story that the rate of Rs. 17,300/- per cottah was agreed to be the price of the front land, provided there was immediate sale. In our opinion, when the plaintiff comes with different cases the Court should not allow the plaintiff to amend the plaint for incorporating one of such cases therein.

15. Secondly, the amendment should be in the aid of the case of the plaintiff. In this case, the proposed amendment that the said sum of Rs. 17,300/- per cottah was agreed to be the price of the front land will not help the plaintiff to get a decree for specific performance of the alleged agreeement for sale of the disputed plot on a consideration of Rs. 75,500/-. The plaintiff has to prove that the defendant agreed to sell the disputed plot at a sum of Rs. 75,500/-. The proposed amendment to the effect that if the defendant agrees to sell front land, the plaintiff is ready to purchase the same is incompatible with the case of the plaintiff that the defendant agreed to sell the disputed plot at a total sum of Rs. 75,500/-. Accordingly, the question of sale of the front land at the rate of Rs. 17,300/- per cottah does not at all arise. So also the prayer proposed to be incorporated into the plaint by amendment to the effect that the decree for sale of the disputed plot may be passed for the consideration of Rs. 75,500/- or for any other enhanced amount as the Court may determine on the basis of the rate admitted by the defendant as referred to in para 1(a) of the proposed amendment, does not arise. In a suit for specific performance of contract, the plaintiff can only insist on a decree in terms of the agreement and not otherwise. It has been already stated that the alleged agreement between the parties as pleaded in the plaint is that the defendant agreed to sell the disputed plot to the plaintiff at a sum of Rs. 75,500/-. The plaintiff by way of amendment cannot ask for a decree for specific performance of the agreement for sale of the disputed plot at any other price than that has been alleged to have been agreed to between the parties.

16. For the reasons aforesaid, we are of the view that the learned Assistant District Judge was not justified in allowing the amendment of the plaint. Accordingly, the impugned order of the learned Assistant District Judge is set aside and the application for amendment is dismissed.

17. The application under Section 115 of the Code of Civil Procedure is allowed. There will be no order as to costs.

18. It is, however, made clear that we have not expressed any opinion on the merits of the case.


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