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Raj Kumar Singhania Vs. Benoy Kumar Mazumdar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKolkata High Court
Decided On
Case NumberSuit No. 629 of 1980
Judge
Reported inAIR1985Cal328
ActsCode of Civil Procedure (CPC) , 1908 - Order 2, Rule 2 - Order 6, Rule 17; ;Specific Relief Act, 1963 - Section 22
AppellantRaj Kumar Singhania
RespondentBenoy Kumar Mazumdar and ors.
Appellant AdvocateAnindya Mitra, Adv.
Respondent AdvocateP.K. Das, Adv. for Defendent No. 1
Cases ReferredChimanlal Ambalal v. Shah Hasmukhlal
Excerpt:
- .....an application for amendment of the plaint wherein the plaintiff claimed a decree inter alia for specific performance of the agreement dt. aug. 27, 1979 being annexures b and c to the plaint and/or for a decree directing the defendant no. 1 and/or defendants and/or such of them as this hon'ble court may deem fit and proper to execute a proper and sufficient conveyance in respect of the suit premises, the particulars whereof are set out in schedule d to the plaint; a decree for rs. 10,000/- in addition to the decree for specific performance; in the alternative a decree for rs. 2,50,000/- as compensation.2. the defendants nos. 1, 2 and 3 have filed a joint written statement, inter alia, alleging that a sum of rs. 34,500a payable to the defendants nos. 2 and 3 by the defendant no. 1 under.....
Judgment:
ORDER

Monjula Bose, J.

1. This is an application for amendment of the plaint wherein the plaintiff claimed a decree inter alia for specific performance of the agreement dt. Aug. 27, 1979 being Annexures B and C to the plaint and/or for a decree directing the defendant No. 1 and/or defendants and/or such of them as this Hon'ble Court may deem fit and proper to execute a proper and sufficient conveyance in respect of the suit premises, the particulars whereof are set out in Schedule D to the plaint; a decree for Rs. 10,000/- in addition to the decree for specific performance; in the alternative a decree for Rs. 2,50,000/- as compensation.

2. The defendants Nos. 1, 2 and 3 have filed a Joint Written Statement, inter alia, alleging that a sum of Rs. 34,500A payable to the defendants Nos. 2 and 3 by the defendant No. 1 under an agreement, not being paid, the plaintiff was not entitled to get any relief in the suit, relying on the Deed of Partition between the defendants Nos. 1, 2 and 3, which provide that the right of the defendants Nos. 2 and 3 to use and enjoy along with the defendant No. 1 any portion of the premises is not absolute, and if the defendant No. 1 or his heirs and legal representatives intend to let out or grant a lease of the allotment made to the defendant No. 1, the defendant No. 1 was required to pay to the defendants Nos. 2 and 3 a sum of Rs. 34,500/- being the agreed consideration for each of them surrendering and foregoing their respective right of common use and enjoyment of the prayer hall and the adjacent room with the roof over the second floor and the right to pass or re-pass from the verandah and the staircase leading to the said prayer hall. The deed further provide that the defendant Nos. 2 and 3 shall execute a formal declaration regarding such surrender and foregoing of such rights. The petitionercontends that it is incumbent upon the defendant No. 1 to make such payment to the defendants 2 and 3 so that full effect can be given to the agreement which is subject matter of the instant suit. The second aspect of the matter is that whilst in the original suit filed, no claim for possession was made, in this application an attempt is made to amend the plaint by incorporating therein a prayer for vacant possession of such portion of premises No. 19 Sarat Chandra Avenue, Calcutta as has been agreed to be let out to the plaintiff, particulars whereof were given in schedule D and further consequential relief, namely, decree for partition etc. was also sought to be incorporated.

3. It may be relevant to note at this stage that admittedly the suit premises is situate outside the aforesaid jurisdiction and leave under Clause 12 of the Letters Patent was sought as part of the cause of action arose within the jurisdiction. In paragraph 21 of the plaint it was specifically pleaded that the plaintiff reserves his right to take appropriate action for claiming possession of the suit premises and in the circumstances the plaintiff prayed for leave under Order 2, Rule 2 of the Civil Procedure Code. It is noted from the records that leave under Clause 12 of the Letters Patent as also leave under Order 2, Rule 2 of the Code was granted to the petitioner on his applying for the same. It would thus appear that the suit filed originally was simpliciter for a decree for specific performance of the agreement and for a money decree in addition, and in the alternative a decree for Rs. 2,50,000/- as compensation.

4. In the petition it is contended that the petitioner has now been advised for the purpose of expeditious disposal and/or adjudication of all disputes between the parties it is just and proper that the plaint be amended by including therein clauses referred to in the deed for payment of Rs. 34,500/- requiring the defendant Nos. 2 and 3 to surrender their rights and to execute a formal declaration regarding such surrender, upon payment of the sum as also the further averment that the defendant No. 1 is expressly or by necessary implication under an obligation to the plaintiff to make payment of the sum of Rs. 34,500/- as provided in the deed to the defendants 2 and 3 and to obtain surrender of the rights of the defendants 2 and 3 over such portion of the premises agreed to be let out by the defendantto the plaintiff and over which the defendants 2 and 3 have common right of enjoyment, which declaration regarding such surrender and foregoing of rights upon receipt of the sum of Rs. 34,500/-as evidenced by the partition deed dt. Mar. 25, 1980, the defendants 2 and 3 are bound to execute.

5. Mr. Anindya Mitra, learned Counsel for the plaintiff has contended that when hearing an application for amendment the Court is not required to consider the merits of the case and/or consider whether the plaintiff would be entitled to the reliefs claimed. In so far as his client seeks to incorporate the said averment relating to payment of Rs. 34,500/-, the same is not a new case, but such facts are a reiteration of contents of a document already annexed to the plaint. Reliance was placed on Section 13(b) of the Specific Relief Act which provides that where the concurrence of other persons is necessary for validating the title, they are bound to concur at the request of the vendor or lessor and the purchaser or lessee may compel him to procure such concurrence. As such, it is contended that the plaintiff has a right to compel the concurrence of the defendants 2 and 3 who are parties to the said partition deed and agreed to surrender their right, title and interest in the premises to the defendant No. 1 upon payment of the sum stated. Reliance was also placed on section 22 of the Specific Relief Act, which new provision was enacted by the legislature to avoid multiplicity of proceedings. Section 22 lays down that a claim for possession and ancillary reliefs may be made and the plaintiff may claim a decree for possession in a suit for specific possession even though, strictly speaking, the right to possession accrues only when specific performance is decreed. The said section reads :

'Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immoveable property may, in any appropriate case, ask for -

(a) possession, or partition and separate possession, of the property, in addition to such performance; or

(b) any other, relief to which he may be entitled, including the refund of any earnest money or deposit paid or made to him, in case his claim for specific performance is refused.

(2) No relief under Clause (a) or Clause (b) of Sub-section (1) shall be granted by the court unless it has been specifically claimed :

Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceedings, allow him to amend the plaint on such terms as may be just for including a claim for such relief.

(3) The power of the court to grant relief under Clause (b) of Sub-section (1) shall be without prejudice to its power to award compensation under Section 21.'

6. Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, reported in : [1970]1SCR22 was relied upon for the proposition that the power to grant amendment, of the pleadings is intended to serve the ends of justice and not governed by any narrow or technical limitations. The principles enunciated therein are that the 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 pleadings 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.

7. For the proposition that the Court at the stage of amendment will not go into the merits of the case, the following decisions were cited :

(1) Dharmalinga Chetti v. A.M. Krishnaswami Chetty, reported in AIR 1949 Mad 467; (2) Abdul Rahim Naskar v. Abdul Jabbar Naskar, reported in : AIR1950Cal379 and (3) Mangal Das Sant Ram Gauba v. Union of India, reported in : AIR1973Delhi96 .

8. It is contended by the learned Counsel for the petitioner that the court is competent to allow amendment even if such proposed amendment deprive the court of further jurisdiction in a matter, and it is for the court to decide subsequently whether the amended plaint should be returned to the appropriate court for presentation. In the instant case thusit is not for the court to look into the question as to whether the inclusion of a prayer for possession by way of amendment would oust court's jurisdiction, inasmuch as the property admittedly, is situate outside the jurisdiction of the Court. In support of this contention reliance was placed upon a Division Bench judgment in Tarapad Shome v. Parbati Charan Sarkar, reported in (1983) 2 Cal LJ 44. I that case the Court viewed that order 6, R. 17 of the Code has not expressly deprived the Court of its power to allow amendments which might subsequently affect its jurisdiction to try the suit. Mr. Mitra contends in so far as the amendment of a plaint is concerned, the Court's power is liberally exercised. For the principles governing the amendment of a plaint reliance was placed on Ganesh Trading Company v. Moji Ram, reported in : [1978]2SCR614 where the Court viewed that defective pleadings are generally curable even if the cause of action sought to be brought out is ab initio completely absent.

9. Mr. P. K. Das, learned Counsel for the defendant No, 1 on the other hand contends that the test for determining whether amendment should be allowed is the real controversy test. It is pointed out that in the plaint the plaintiff with knowledge that the property was situate outside the jurisdiction and no suit maintainable in this Court, sought leave under Clause 12 of the Letters Patent as also under Order 2, Rule 2 reserving his right to take appropriate action for claiming possession of the suit premises. In this view of the matter, no amendment for possession can now be allowed and admittedly, the Court would have no jurisdiction to try the suit in respect of the land situated outside the jurisdiction. It is contended that by seeking to incorporate the proposed amendments the plaintiff is attempting to alter the character of the suit by making the same one for possession and for partition which is not permissible in law. Thirdly, the application is not in good faith as after obtaining an interim injunction in its favour by an order dated 13th August, 1981 restraining the defendant No. 1 from transferring the disputed property by way of sale, mortgage or lease, which order was finally disposed of by confirming the continuation of the interim order till the disposal of the suit and directing that the suit be expedited and parties to take steps so that the suit may beheard without delay, the plaintiff has been deliberately delaying the hearing of the suit and this is a second application made by the plaintiff for amendment of the pleadings. The first application being made after the order of the Appeal Court referred to hereinabove, and the plaint amended under order dt. 15th June, 1983 as would appear from the endorsement on the plaint. As such, it is contended that the said second application is not made in good faith, and after the suit is part-heard another attempt is made to delay the proceedings further. In any event, in so far as the reliefs for possession are concerned, the Court has no jurisdiction to grant the same.

10. It is contended that the decision reported in (1983) 2 CLJ 44 (51) is of no assistance to the plaintiff as the said decision accepts the proposition that if the Court has no jurisdiction to hear the suit, the Court would have no jurisdiction to grant an amendment.

11. Drawing Court's attention to para 3(a) of the plaint, Mr. Das contends that the agreement and/or contract contains a provision for vacant possession in respect of which contract specific performance is claimed.

12. Moreover, having taken leave under Order 2, Rule 2, as the Court had no initial jurisdiction to grant the relief of possession, no question can now arise for urging that multiplicity of judicial proceedings should be avoided.

13. It is next contended that execution of specific performance in terms of prayer (b) in any event would include a decree for possession, in support of which proposition Debabrata Tarafder v. Biraj Mohan Bardhan reported in : AIR1983Cal51 was cited. In that case the Court held that where an integral part of the contract is delivery of possession, a prayer for specific performance necessarily contemplates the specific performance of the entire agreement, including the agreement to deliver possession irrespective of the fact, whether an express prayer for possession is made or not.

14. Babu Lal v. Hazarilal Kishori Lal, reported in : [1982]3SCR94 is also an authority for the proposition that relief of possession isinherent in the relief of specific performance of the contract.

15. The third aspect of the matter, if amendment is sought which affects jurisdiction of the Court, fresh leave is required to be obtained as laid down in Daulatram Agarwalla v. Champalal Jugraj, reported in : AIR1963Cal337 . In that case the Court was of the view that any substantial or material addition to or alteration of the cause of action as pleaded in the original plaint is dependent on obtaining prior leave of the Court inasmuch as the question of amendment and the question of jurisdiction are inextricably linked up.

16. It is contended that the real controversy between the parties at the time when the original suit was filed was whether there should be specific performance of the agreement between the plaintiff and the defendant No. 1 and no such cause of action against the defendant Nos. 2 and 3. Any attempt to amend the plaint so as to create a cause of action against them is wholly foreign to the proceedings and should not be allowed.

17. Kanailal Das v. Jiban Kanai Das, reported in : AIR1977Cal189 was also cited to indicate the principles governing the amendment of a plaint not only is the real controversy test a matter to be looked into but the nature of the claim as originally filed cannot be altered.

18. In so far as Section 22 of the Specific Relief Act is concerned, it is contended that the Supreme Court decision cited does not assist the plaintiff in any manner as the Court noted that the term 'in an appropriate case' in Section 22(1) of the Act was significant, and viewed that such expression indicated that it is not always incumbent on the plaintiff to ask for possession or partition in a suit for specific performance of a contract.

19. It is contended Section 22 of the Act enables the plaintiff at any stage of the proceedings to include one or more of the reliefs by means of any amendment of the plaint on such terms as the Court may deem proper, necessarily only in appropriate cases and not in all cases. Thereby the Legislature introduced into the Act an enabling provision in order to avoid multiplicity of proceedings so that a claim for a decree for possession could be made in appropriate cases eventhough, strictly speaking, the right of possession accrues only when specific performance is decreed.

20. It is contended that it was not the intention of the legislature to invest the Court with jurisdiction, where it had none or to set at naught the law with regard to Clause 12 of the Letters Patent. In the instant case the property admittedly situated outside the jurisdiction of this Court, and the plaintiff was not seeking possession initially, for this very reason. It thus cannot be said to be a case of omission and/or negligence as laid down in the decision cited, namely, : [1978]2SCR614 .

21. Mr. Gopal Chakraborty, appearing for the defendant Nos. 2 and 3, adopts the arguments made on behalf of the defendant No. 1 and contends that Sections 13 and 22 of the Specific Relief Act are of no assistance to the petitioner and no inspiration can be derived therefrom.

22. Mr. Anindya Mitra, learned Counsel for the petitioner cites Debendra Nath Chowdhury v. Southern Bank, reported in : AIR1960Cal626 , in which case the Court was called upon to consider whether (sic) a suit for land, and held that a suit for specific performance of a contract, to execute a registered lease with alternate claim for damages is not a suit for land. This view has not been departed from by the Supreme Court in its judgment reported in : [1982]3SCR94 . It is contended that in a decree for specific performance resulting in ultimate possession being obtained by the plaintiff does not convert the suit into a suit for land where such a suit is simpliciter for enforcing the contract in personam and where the cause of action is not one for recovery of land, or recovery of possession, as such. Order 2, Rule 2 is also no bar against seeking an amendment, and such a right has been specifically given to a litigant under Section 22 of the Specific Relief Act. Reliance was placed on Chimanlal Ambalal v. Shah Hasmukhlal, reported in : AIR1976Guj60 where the Court viewed that where a plaint was returned for presentation to a proper Court having jurisdiction, amendment thereof to include a claim for interest accrued from the time it was filed in the first Court till it was represented in the proper Court, can be allowed in spite of leave under Order 2, Rule 2 being granted. It is submitted, the amendment soughtto be introduced herein does not affect any rights accured to the other party which would prejudice them and it is always open to the plaintiff to seek amendment in pleadings prior to conclusion of a suit. The submission that if the Court has no initial jurisdiction no amendment would lie is also not sustainable as on the face of it, the claim made in the original plaint is not a suit for land and it cannot be said that the Court lacked initial jurisdiction to entertain the same. The judgment of the Supreme Court relied upon and cited reported in : [1982]3SCR94 affirms that at the stage of execution one can ask for possession even if no prayer for possession made. This decision however is of no assistance to the respondents as a question of jurisdiction is not required to be considered at this stage, and only an amendment of its pleadings sought The ratio of : [1982]3SCR94 is that the execution Court has every jurisdiction to allow an amendment by incorporating the relief for possession in the plaint, necessitated because of the provision of Section 22 which is an enabling provision. The Supreme Court in the facts of that case viewed instead of granting the relief for possession, the High Court should allow an amendment in the plaint noting that the litigation had dragged on for thirteen years and it would be a travesty of justice to ask the decree holder to file a separate suit for possession. In that background the Court viewed 'mere omission of the High Court to allow an amendment in the plaint is not so fatal as to deprive the decree holders of the benefits of the decree when Section 55 of the T.P., Act authorises the transferee to get possession in pursuance of a sale deed'. Mr. Mitra relies upon the enabling provision namely section 22 of the Specific Relief Act which entitles the plaintiff to seek amendment by incorporating relief for possession and partition and specially enact that under Clause (2) thereof no relief for possession, partition and/or reliefs to which plaintiff may be entitled will be granted by Court unless specifically claimed. Alternatively, Mr. Mitra argued that in any event Order 6 Rule 17 does not deprive the Court of its jurisdiction to allow amendment even if such proposed amendments thereafter affect the Court's jurisdiction to try the suit as held in 1983(2) Cal LJ 44. It is settled law that the Court has power to allow amendments in its discretion if the real controversy test is satisfied and in the instant case the cause ofaction is the right to obtain specific performance of an agreement. He thus urges that it is not germane to consider whether the proposed amendment divests the Court of its jurisdiction and it is immaterial whether the relief claimed could have been asked for earlier. It is contended that there was no question of the application being mala fide as the injunction obtained did not completely restrain the defendant from disposing the property in question and the Court had directed two months' notice in writing to be given to the petitioner prior to any sale being effected. As such, any submission that the respondent/defendants were suffering by reason of the order of injunction and plaintiffs interest was only to prolong the proceedings has no basis.

23. Having considered the rival contentions urged, this Court is of the view that there is more substance in the contention of Mr. P. K. Das, namely a claim for possession now sought to be introduced by way of an amendment should not be allowed. To my mind it is not a mere case of amendment which if allowed would divest the jurisdiction of the Court but a case where the facts evidence that the property being situate outside jurisdiction no relief of possession could initially have been claimed in the original proceedings as the matter would be admittedly beyond jurisdiction of the Court if such a prayer or claim incorporated. It is significant that with knowledge of this aspect of the matter relief under clause 12 of the Letters Patent and Order 2, Rule 2 was obtained by the plaintiff and specifically stated that the plaintiff reserved his right to take appropriate action to claim possession of the suit premises. The present application for amendment is not one such appropriate action contemplated. As such, it cannot be said that there was any inadvertence or negligence or any such factors required to be considered when considering whether the plea for amendment should be allowed. It cannot also be said that there is any defective pleadings on record which is required to be cured as viewed in : [1978]2SCR614 . The second aspect of the matter, of great significance is that Section 22 of the Specific Relief Act which is an enabling provision does not seek to interfere with the jurisdiction of a Court and the section itself enacts that 'in an appropriate case' a claim for possession and ancillary reliefs can be sought by way ofamendment in order to avoid multiplicity of proceedings. In the instant case, the decree for possession could not have been asked for in the original plaint as the Court would be incompetent too entertain and try a suit for land and the legislature in enacting Section 22 did not override Clause 12 of the Letters Patent. As such, the expression 'in an appropriate case' must necessarily mean and refer to a case where the plaintiff was competent to make a claim for possession and/or seek other ancillary reliefs, to avoid multiplicity of proceedings. It was not the intention of the legislature to give jurisdiction to a Court which had none, and it would be travesty of justice to allow a prayer for possession to be brought into the pleadings in this circuitous manner, when admittedly the original Court lacked jurisdiction to do so, and the plaintiff well knew his limitations and, therefore, sought appropriate relief under clause 12 of the Letters Patent as also Order 2 Rule 2 so that appropriate action could be taken by him, if necessary, in further proceedings. In this view of the matter, any prayer for possession and any amendment relating thereto cannot be allowed and is refused. The Division Bench decision cited in (1983) 2 Cal LJ 44 is distinguishable and each case must be guided by its own facts. In any event in that case, the court was not required to construe section 22 of the Specific Relief Act. So far as the prayer for incorporating the prayer for decree directing the defendant No. 1 to make payment of Rs. 34,500/- and consequential reliefs tereunder, the same arises out of the agreement which is the subject-matter of the suit and not being a new case and being a matter which is in issue between the parties namely, as to whether the agreement sought to be enforced is required to be specifically enforced, the same would be sustainable and such amendments are thus allowed. Mr. Mitra has expressly indicated to the Court that so far as amendments sought for in paragraphs of Annexure X(e3) to (e5) are concerned, he was not pressing for the same and as such the same are not required to be considered.

24. It is also not necessary to consider at this stage whether a decree for specific performance in terms of prayer (b) would include a decree for possession, and divest the court of its jurisdiction to entertain try and determine the same, and the matter is left open.

25. In the premises leave is given to the petitioner to amend the plaint in the manner shown in paras 15(a), 15(b) and 15(c) of the Annexure X to the petition. The proposed amendments in paras 15(d), 15{e) and 15(f) are rejected. Para (el) is allowed and para (e2) is rejected. Paras (e3), (e4) and (e5) are not required to be considered in view of the submissions made by the learned counsel for the petitioner as recorded hereinabove. Liberty is given to the defendants to file their additional written statement within a week from date dealing with only the said amendments allowed. Discovery by letter within a week, inspection forthwith thereafter and the suit to appear in the list marked part heard on Aug 31, 1984 so that the matter may be expeditiously proceeded with. All parties to act on the signed copy of the minutes. The petitioner to pay the costs. Stay is granted for three weeks.


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