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Shri Iswar Jagannath Deb Jew Vs. Fatik Chandra Seal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 32 of 1964
Judge
Reported inAIR1972Cal372
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17; ;High Court Rules; ;High Court Orders; ;Calcutta High Court Original Side Rules - Rules 5, 44, 45 and 46
AppellantShri Iswar Jagannath Deb Jew
RespondentFatik Chandra Seal and ors.
Appellant AdvocateP.K. Sen, Adv.
Respondent AdvocateS. Das, Adv. for (Defendent Phatik Chandra Seal) and ;Gopal Law, Adv. for (Defendent Umesh Chandra Seal)
DispositionPetition allowed
Cases Referred(Bata Shoe Co. Ltd. v. National Properties Ltd.). In
Excerpt:
- orderhazra, j.1. this is an application for amendment of the written statement. this application has been made by umesh chandra seal, the defendant no. 3. the summons has been taken out on january 28, 1972 for leave to amend the written statement. the grounds taken in the application have been stated in paragraph 3 of the petition. it is slated that through inadvertence and/or mistake the effect of surrender and/or relinquishment of sebait-ship or trusteeship of manindra chandra seal, the father of the plaintiff no. 2 prem chand seal has not been specifically pleaded. according to the petitioner, the claim of the plaintiff no. 2 in this suit for she-baitship and trusteeship is barred by the law of limitation and/or ouster and the suit is not maintainable as there was no proper or any.....
Judgment:
ORDER

Hazra, J.

1. This is an application for amendment of the written statement. This application has been made by Umesh Chandra Seal, the defendant No. 3. The summons has been taken out on January 28, 1972 for leave to amend the written statement. The grounds taken in the application have been stated in paragraph 3 of the petition. It is slated that through inadvertence and/or mistake the effect of surrender and/or relinquishment of sebait-ship or trusteeship of Manindra Chandra Seal, the father of the plaintiff No. 2 Prem Chand Seal has not been specifically pleaded. According to the petitioner, the claim of the plaintiff No. 2 in this suit for she-baitship and trusteeship is barred by the law of limitation and/or ouster and the suit is not maintainable as there was no proper or any appointment of the next friend of the plaintiff deity. The proposed amendment has been annexed to the petition. In the affidavit-in-opposition filed by Prem Chand Seal the plaintiff No. 2, it is stated that the applicant has filed his written statement about 7 years ago and if he was serious, he would have made his application for the proposed amendment much earlier, as the suit appeared in the peremptory list from time to time since 1968. It is denied that the proposed amendment did not find any place in the original written statement due to inadvertence or mistake. It is stated that the applicant has come forward with a belated, frivolous application, mala fide with the intention of further delaying the hearing of the suit. It is submitted that the application is mala fide and is abuse of the process of the Court or that the applicant will suffer, if the proposed amendment is disallowed. On the contrary, if it is allowed the hearing of the suit will be unnecessarily delayed.

2. In the affidavit-in-reply Umesh Chandra Seal stated that during the conference held with his counsel on January 16, 1972 last, it transpired that certain amendment of the written statement filed by him was necessary for the purpose of determining the real question in controversy. It is denied that the application is belated or frivolous or mala fide or is made with intention of further delaying the hearing of the suit. It is denied that the proposed amendment is quite new and/or foreign to the defence already taken.

3. In order to appreciate the nature of proposed amendments, it is necessary to enumerate certain facts, which appear from the pleadings. It is also necessary to state the nature of the defence as originally made, and the proposed amendments for the purpose of determining whether, I shall grant the amendments at this stage.

4. On October 1, 1916 one Durga Das Seal executed a deed of endowment, dedicating his vast properties to the plaintiff Deity Sri Sri Jagannath Deb Jew. The deed provided, inter alia, that Durga Das would be the first trustee and Scbait and after his death the trusteeship and sebait-ship would devolve upon his legal heirs according to the Bengal School of Hindu Law by which he was governed. On September 19, 1925, Durga Das died leaving 7 sons to wit; Manindra, Girish, Umesh, Ashutosh, Ganesh, Subal and Jadav as his heirs and legal representatives. From 1925 to 1943 various litigations took place between the trustees and sebaits for the administration of the debutter estates. Ganesh, Subal and Jadav died intestate and unmarried. Manindra relinquished his office as sebait and trustee. On May 3, 1943 Prem Chand who is the only son of Manindra and heir of Durga Das Seal instituted a suit in this Court, inter alia, for removal of the defendants from their office of trusteeship and sebaitship, for a declaration that the plaintiff be appointed as the sole trustee and sebait, accounts, ad-minislration and other reliefs. In the said suit Sri Sri Iswar Jagannath Deb Jew Deity was represented by the said Prem Chand as the first plaintiff. Umesh Chandra Seal, Ashutosh Seal, since deceased and also Girish Chandra Seal since deceased as also Ganesh and Jadav were the defendants in the said suit.

5. On September 7, 1948 by an order passed in the said suit No. 593 of 1943 Mr. H. K. Bose, Barrister-at-law fas he then was), was appointed Special Referee for framing a scheme in accordance with the deed of endowment. Tn or about September, 1950, the Special Referee framed a scheme for the administration of Debutter properties and for the due performance of the periodical and daily seba of the Deity and for carrying out of other religious and charitable trust. By the said scheme Girish, Ashutosh and Umesh were declared as the then sebaits and trustees of the plaintiff Deity. Mr. Kumud Behari Bose, Barrister-at-Law was appointed as the first Manager for five years. The scheme further provided that the subsequent Manager will be elected from amongst themselves. On July 21, 1949 final decree was passed in the said suit No. 593 of 1943 confirming the said scheme. In 1952 Ashutosh died leaving his widow Raj Kishen, the defendant No. 4 in this suit and only son Fatik, the defendant No. 1 as his heirs and legal representatives. Besides, he left 3 daughters Manika, the defendant No. 4a, Binapani, the defendant No. 4b and Mayarani, the defendant No. 4c.

6. In 1954 Fatik became a sebait in place of Ashutosh and was appointed Manager by the sebaits. On March 6, 1963 Manindra died intestate leaving Prem Chand, plaintiff No. 2, the only son and Ranimoni, the defendant No. 5, and Rash-moni, the defendant No. 6 his two daughters as his heirs and legal representatives. On February 13, 1956, Girish, defendant No. 2, in this suit died intestate leaving Badamkumari, the defendant No. 2 as his widow and Mohan Chand defendant No. 2b as his only child who are his heirs and legal representatives. In 1970 Raj Kisshen the defendant No. 4 died intestate leaving her only son Fatik, the defendant No. 1 and daughter Manika defendant No. 4a, Binapaui defendant No. 4b and Mayarani, defendant No. 4c as heirs and legal representatives. In 1962 Prem Chand claimed his sebaitship and tnistccship under the endowment and his remuneration therein. Such claim was turned down by the defendants Fatik, Umesh and Girish since deceased. On January 2, 1964 this suit was instituted, inter alia, for declaration that plaintiff No-2 is a sebait of the plaintiff Deity and one of the trustees of the endowed estate, permanent injunction restraining the defendants, their servants and agents from interfering with the lawful exercise of the rights of the plaintiff No. 2 as such sebait, remuneration of defendants other than defendants Nos. 2a, 2b, 4, 5 and 6, remuneration of present manager, appointment of the plaintiff No. 2 as the sole sebait and trustee; declaration as to who are the present sebaits and trustees, administration, accounts, decree for such sum as the plaintiff No. 1 is entitled to upon taking all accounts, decree for such sura as the plaintiff No. 2 is entitled to as remuneration, cancellation of present scheme, framing of a scheme of amendment for administration of the estate, worship of the plaintiff Deity, performance of the ceremonies, discovery, inspection, receiver, injunction and other reliefs.

7. On March 23, 1964 the defendant No. 3 Umesh Chandra Seal filed his written statement. In paragraph 1 of the written statement Umesh Chandra Seal stated that paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the plaint are matters of record and the defendant relied on the same for ascertainment of the true scope and effect thereof. With regard to these paragraphs of the written statement Umesh Chandra Seal now wants to amend the written statement by stating that in view of the surrender and/or re-linquishment of sebaitship and trusteeship by the said Manindra Chandra Seal in favour of his co-sebaits and co-trustees as will appear from the deed of surrender and relinguishment dated May 9, 1931, the plaintiff No. 1 did not and could not have hereditary or any right of sebaitship and/ or trusteeship in accordance with the provisions of the deed of endowment dated October 1, 1916 or at all in respect of the said endowed estate. Mr. Law appearing for Urnesh Chandra Seal submitted before me that the proposed amendments were by way of elucidation of the statements which are already there in the pleading. This is not a new case but the defendant is indicating the point of law which arises. He wants that an issue should be framed on this point and argued. The plaintiff will not be prejudiced because the facts are already there in the pleading.

8. The further amendment proposed is with reference to paragraph 6 of the plaint. The defendant wants to raise the plea of res judicata. The defendant wants to amend the written statement by stating that the plaintiff No. 2 instituted a suit in this Court being suit No. 593 of 1943 (Sri Sri Ishwar Jagannath Deb Jew v. Girish Chandra Seal, wherein, inter alia, he allged and claimed for appointment of himself as the sole trustee and sebait of the plaintiff Deity and for remuneration of the other sebaits and trustees including this defendant. On or about July 21, 1949 final decree was passed by this Court in the said suit No. 593 of 1943. This Court, however, was pleased not to entertain the said claim of the plaintiff No. 2 as to sebuitship and trusteeship of the plaintiff deity which claim was rejected and refused bv this Court. In the premises, the said claim of the plaintiff No. 2 in this suit is barred by the principles of res judicata and/or principles analogous thereto. This amendment is purely a question of law on the facts which are already there in the previous suit. The defendant wants that this Court will also consider whether the present suit is barred by the principles of res judicata or other principles analogous thereto. The other amendment sought for is in paragraph 12 of the original written statement. In the original written statement, it was stated that the suit is not maintainable inasmuch as the plaintiff Prem Chand Seal has no right to the office of the trusteeship and sebaitship and has no locus standi to represent the plaintiff Deity. By way of amendment the defendant Umesh Chandra Seal now wants to add that inasmuch as the plaintiff No. 2 was not appointed by this Court to represent the plaintiff Deity as its next friend nor any leave was granted to him for the said purpose, this suit is not maintainable and should be dismissed with costs. Or, in other words, the defendant wants an additional plea should also be considered on the facts and circumstances which are already there. The last amendment that the defendant wants is that, the claim of the plaintiff No. 2 for sebaitship and trusteeship is barred by the law of Limitation and/or ouster.

9. Mr. Gopal Law for the defendant Umesh Chandra Seal relied on : AIR1970Cal8 (Seth Nanak Chand Shadiram v. Amin Chand Payarilal). In this case certain amendments of the plaint were sought for by way of elucidation of the allegation and further that by mistake or through inadvertence the petitioner failed to incorporate the elucidation and/or particulars in the original plaint. The proposed amendment was allowed by A. N. Ray, J. fas he then was) and S. K. Mukherjea, J. The next case relied on is : [1970]1SCR22 (Jai Jai Ram v. National Building Materials Supply, Gurgaon). In this case, it was held that the power to grant amendment of the pleading is intended to serve the needs of justice and is not governed by any narrow or technical limitation. The Court always grants leave to amend the pleading of a party unless it is satisfied that the party applying was acting mala fide or that by his acts he had caused injury to his opponent which may not be compensated by an order for 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.

10. The next case relied on by Mr. Law is : AIR1950Cal379 (Abdul Rahim Naskar v. Abdul Jabbar Naskar) where Harries, C. J. and Sarkar, J. (as he then was) held:

'If the amendment is necessary to decide the real issue between the parties the amendment should be granted, even though the Court may think that the plaintiff or the defendant who seeks the amendment will not be able to establish the facts necessary to support the amendment plea of defence.'

11. Dr. S. Das who was appearing for the defendant Fatik Chandra Seal supported the petitioner and submitted before me that in the conference which was held with him these points also struck him as important questions which arise for consideration of the Court and accordingly he also advised that an application for amendment should be made. Prima facie, I am satisfied that the amendment should be allowed. The proposed amendments are questions of law which arise from the pleadings or from facts which are already there in the plaint or in the written statement of the parties. Only the defendant Umesh Chandra Seal has clarified and/or formulated the points of law which he wants that the Court should consider for determination of the real question of con-troversy between the parties.

12. As to whether amendment should be allowed or not; the ultimate test is :-- (a) whether the amendment is necessary for the purpose of determining the real question or controversy, (b) whether the amendment can be allowed without injustice to the other side. It is not the case that these amendments are made mala fide. The whole question is whether by reason of delay for making this application any injustice is caused to the plaintiff. There is some delay no doubt but however much the delay may be, it is a question of law which the defendant wants to raise in (he suit and the suit has not been heard.

13. Mr. P. K. Sen, the learned advocate for the petitioner urged before me that the amendments should not be allowed. He first of all argued that the petition has been made in violation of the rules of this Court and as such is liable to be thrown out. He referred to Chapter VI, Rule 5 of the Rules of the Original Side which provides as follows:

'Unless otherwise ordered, such summons, not being an originating summons shall be served 2 clear days before the return thereof. A summons may be made returnable in a shorter time by leave of the Registrar or Master which shall be endorsed on it.'

He also referred to Chapter 38, Rule 44 which provides as follows:

'Where any particular number of days, expressed to be clear days, is prescribed by the rules and practice of the Court the same shall be reckoned exclusive both of the first and the last days.' Relying on these rules, Mr. P. K. Sen argued that the Master's summons in this case was taken out by Messrs. A. K. Chattcrjee and Co. Solicitors for the applicant on 28th January, 1972, and made returnable on 31st January, 1972. A copy of the summons wilh the grounds was served on Shri Pulak Chandra Das, Solicitors for the plaintiffs on January 28, 1972. From the endorsement in the original summons it appears that Ashit Kumar De, clerk to Shri Pulak Chandra Das, Solicitor received the summons at 4-40 P.M. He argued that the office hours of the Court are up to 4-30 P.M.

14. In view of Chapter 38, Rule 47, the summons should be deemed to have been served on January 29, 1972, and it was made returnable on January 31, 1972. He submitted that January 29, and January 31 should be excluded and therefore there are no 2 clear days for service before the return thereof as provided in Chapter VI Rule 5 of the Rules of the Original Side. He submitted that the petitioner has not complied with the rules. He also contended that a summons may be made returnable in a shorter time by leave of the Registrar or Master, which shall be endorsed on it. There is no such leave endorsed on the summons, and no such leave was taken beforehand, for short service and therefore, this summons, according to him, should be thrown out.

15. After receipt of the summons the parties appeared before the Court on the returnable date, namely, January 31, 1972 and by consent the matter was adjourned and permission for filing affidavits was obtained. Thereafter, by consent the matter was adjourned from time to time and affidavits were filed by the respective parties. As a matter of fact the suit was called on for hearing before me and after it was opened by Mr. P. K. Sen, the learned counsel for the defendant Umesh Chandra Seal submitted that his client has been advised to make an application for amendment for the written statement and the matter was then adjourned for the same.

16. In Chapter 38, Rule 46 of the Rules of the Original Side, it is provided that 'the Court or a Judge shall have power to enlarge or abridge the time appointed by these rules ..... upon such terms (if any) as the justice of the case may require and any such enlargement may be ordered, although the application for the same is not made only after the expiration of the time appointed or allowed'. After all 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 or inadvertence or infraction of the rules of procedure. This is a salutary principle and this principle has been recognised by the Supreme Court in : [1970]1SCR22 . Mr. Sen did not say that his client suffered injustice because of shortness of time. As a matter of fact the clerk of Mr. Pulak Chandra Das, Solicitors for the plaintiff received the summons on January 28, 1972. I think the Court has ample power to abridge] time to do justice to a litigant. This is not a case where due to shortness of time the plaintiff has suffered in any way. However, since then I enquired from the Registrar, Appellate Side as to the office hours of the Court and I ascertained that the office hours are between 10-15 A.M. to 4-45 P.M. In that event, the summons being received at 4-40 P.M. on January 28, 1972 by the clerk of Shri Pulak Chandra Das, was received in time on January 28, 1972, and the summons being returnable on January 31, 1972, there are two clear days before the returnable date. In the premises, there is no substance in the point raised by Mr. P. K. Sen. The next point submitted by Mr. P. K. Sen is that the delay in making this application has not been explained in the petition. Mr. Sea relied on AIR 1970 SC 42 (Raj Kumar Mohaa Singh v. Raj Kumar Pasupatinath Saran Singh) and contended that this amendment should not be allowed. In Raj Kumar Mohan Singh's case litigation continued for 22 years and the defendant applied in the Supreme Court for amendment of the written statement to raise new contention. The Supreme Court was not satisfied, prima facie, in the contention raised and held that the amendment could not be allowed at such a late stage. In my view the Supreme Court did not allow the amendment under entirely different circumstances which has not much relevance ]to the facts of this case. In this case all the facts are there in the pleadings of the parries. Only certain points of law are sought to be raised by way of amendment which arise from the facts which are already stated. The defendant stated in bis affidavit that there is no inconsistent averment. The proposed amendment has been asked for in elucidation and amplification of the averments already made in the written statement. I do not think that there will be any injustice caused to the plaintiff if I allow such amendment. Mr. P. K. Sen relied on (1966) 70 Cal WN 1055, (Bata Shoe Co. Ltd. v. National Properties Ltd.). In this case, the defendant asked for amendment of the written statement after 7 years. The plaintiff opposed the amendment on the ground that by the amendment the defendant is seeking to make a third party responsible for the injury and contended that what is sought to be pleaded by way of amendment were pleaded in the original written statement. He could have sued the third party which he cannot do now in view of lapse of time. I do not know how this case has any relevance under the facts of this case. In any event, in the case reported in (1966) 70 Cal WN 1055, S. K. Mukherjea, J. held: 'the amendment of the defence should not be refused on the ground that the defendant is making a new case if the plaintiff does not suffer some injury by the amendment which cannot be compensated by costs'. I think that this case is against the contention of Mr. P. K. Sen and this case does not support him. In this case leave to amend the written statement was granted by S. K. Mukherjea, J. even after 7 years. The other case cited by Mr. P. K. Sen, : [1970]1SCR530 does not apply. In the premises, I will allow the prayers in the Master's summons. Orders in terms of prayers (a), (b) and (c) of the Master's summons are granted. With regard to costs, the petitioner must pay costs of this application and the costs thrown away by reason of the suit being taken out of the list when the suit was actually called on and opened by Mr. P. K. Sen. Mr. Sen submitted that his client will not be able to realise the cost from the petitioner unless it is made condition precedent. He stated that there is a decree in favour of his client for Rupees 28,000/- which is mentioned in his affidavit and the said decree could not be realised. There is no doubt that in the instant case there is delay for several years. Cost of the day was reserved. This prayer for amendment of the written statement has been made more than 7 years after the date of the filing of the original written statement. In view of the above fact, the petitioner do pay to the plaintiff's Solicitors the sum of 30 GMs. within 4 weeks from date for one set of costs of their application and the costs thrown away pursuant to the application made herein and the said 30 GMs. be held subject to taxation on usual undertaking of the parties to repay or refund whatever the amount may be on taxation. The amendment should be effected within 4 weeks from this date, on a signed copy of the minutes, On usual undertaking of the applicant's Solicitors to have the order drawn up and completed. Order to be drawn up expeditiously. All parties concerned including the department to act on a signed copy of the minute. Suit to appear in the peremptory list 6 weeks from this date. Certified for counsel.


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