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Mihir Dutta Vs. Anadi Lal Mukherjee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1067 of 1979
Judge
Reported inAIR1980Cal339
ActsCode of Civil Procedure (CPC) , 1908 - Order 6 - Rule 17
AppellantMihir Dutta
RespondentAnadi Lal Mukherjee and ors.
Appellant AdvocateRabindra Nath Mitra, ;N.C. Saha, ;Dipak Kr. Roy, Advs.
Respondent AdvocatePadmabindu Chatterjee and ;A.K. Chatterjee, Advs.
Cases ReferredBhuramal Agarwalla v. Samla Dalurband Coal Co.
Excerpt:
- .....denied and it was asserted that the wall in question did not belong to the plaintiff, but it was a common wall. the plaintiff deposed in the suit as p. w. 1 on february 20, 1979 and in his cross-examination he produced a partition deed including a plan for the purpose of showing the respective portions belonging to the parties. on february 22, 1979 an application for amendment of the written-statement was filed by the petitioner alleging that from the plan produced by the plaintiff in course of his evidence the petitioner came to know that the wall in question was not a common wall, but it belonged to him. the learned judge rejected the application for amendment of the written-statement on the ground that it militates against the admission made by the petitioner that the wall was a.....
Judgment:

A.K. Janah, J.

1. This Rule is directed against Order No. 47 dated March 2, 1979 passed in Title Suit No. 195 of 1976 by the Munsif, 4th Court, Alipore reiecting an application for amendment of the written-statement filed by the defendant No. 1. The suit was instituted by the opposite party No. 2 against the petitioner and the remaining opposite parties for declaration of title and for a permanent iniunction restraining the petitioner from making construction complained of. It was alleged that the petitioner who was a purchaser of a portion of the house was trying to put a reinforced concrete beam on a wall for the purpose of supporting the roof and this was causing damages to the plaintiff's portion of the house. In the written-statement filed by the petitioner the allegation made by the plaintiff opposite party No. 1 was denied and it was asserted that the wall in question did not belong to the plaintiff, but it was a common wall. The plaintiff deposed in the suit as P. W. 1 on February 20, 1979 and in his cross-examination he produced a partition deed including a plan for the purpose of showing the respective portions belonging to the parties. On February 22, 1979 an application for amendment of the written-statement was filed by the petitioner alleging that from the plan produced by the plaintiff in course of his evidence the petitioner came to know that the wall in question was not a common wall, but it belonged to him. The learned Judge rejected the application for amendment of the written-statement on the ground that it militates against the admission made by the petitioner that the wall was a common wall. Against the said order the petitioner has obtained the present Rule,

2. Mr. Mitra, learned Advocate for the petitioner, has contended that in the present case there was no admission made by the petitioner in the written-statement as originally filed by him that the wall in question was a common wall. He has contended that what was stated by the petitioner in the written-statement as originally filed by him was that the wall in question did not belong to the plaintiff as claimed by him and that it was a common wall. That was not really an admission that the wall was a common wall, but it was merely an assertion denying the plaintiff's claim that the wall belonged to the plaintiff. The amendment sought for by the petitioner stating that the wall belonged to him was not in any way inconsistent with any alleged admission made by him. It was contended that in any event, the amendment should have been allowed in order to decide the real controversy between the parties to the suit. He has relied upon the decision in Ishwardas v. State of Madhya Pradesh reported in : (1979)4SCC163 . In that case the Supreme Court observed as follows:

'There is no impediment or bar against an appellate court permitting amendment of pleadings so as to enable a party to raise a new plea. All that is necessary is that the Appellate Court should observe the well known principles subject to which amendments of pleadings are usually granted. Naturally one of the circumstances which will be taken into consideration before an amendment is granted is the delay in making the application seeking such amendment and if made at the appellate stage, the reason why it was not sought in the trial court. If the necessary material on which the plea arising from the amendment may be decided ia already there, the amendment may be more readily granted than otherwise. Exit, there is no prohibition against an Appellate Court permitting an amendment at the appellate stage merely because the necessary material is not already before the court.'

3. Mr. Mitra also referred to the deci-sion in Shikharchand Jain v. Digamber Jain Praband Karini Sabha reported in : [1974]3SCR101 . In that case the Supreme Court observed at para 11 of the judgment as follows:

'Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a court including a court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties.'

4. Mr. Chatterjee, learned Advocate appearing on behalf of the opposite party No. 1 has contended that if the amendment prayed for is allowed in the present case, it would amount to a change of the entire defence case, inasmuch as the defendant has already made an admission that the wall in question is a common wall. It was contended that if this is permitted, the plaintiff would be very seriously prejudiced and his portion of the house will be in danger. Even if the amendment is allowed the assertions made by the defendant will be required to be proved and the plaintiff will then certainly be entitled to adduce evidence showing that the claim made by the defendant is not true. There is therefore no reason for the apprehension expressed by Mr, Chatteriee. It was contended by Mr. Chatteriee on the basis of a decision in Biva's Private Ltd. v. West Bengal Khadi and Village Industries Board reported in : AIR1977Cal333 that the amendment prayed for in the present case should not be allowed. In that case there was a clear admission made by the defendant and the defendant wanted to eet rid of this admission by the amendment. That suit was for price of goods supplied to agent There was an admission in the written-statement about the defendant being the sole selling agent. It was asserted that the plaintiff failed to execute the pole selling agency agreement. By the amendment this admission was sought to be got rid of. That case was therefore quite different on facts. The next case cited by Mr. Chatterjee in support of his contention in Bhuramal Agarwalla v. Samla Dalurband Coal Co. (P.) Ltd. reported in 1977 (2) Cal LJ 310, In that case also the facts were quite different. There the defendant had made an admission that the properties belonging to a certain colliery belonged to the plaintiff. By the proposed amendment this admission was sought to be got rid of. In these circumstances, it was held that the amendment could not be allow-ed in the facts of that case. The cases re-lied upon by Mr. Chatterjee cannot therefore have any application to the present case. In the facts and circumstances of the present case I am of the opinion that the amendment prayed for should have been allowed by the learned Munsif. AS prayed for by Mr. Chatteriee, for safeguarding the interests of the plaintiff it only remains for me to say that the amendment even if allowed will not automatically prove the assertions made by the petitioner which would be required to be proved by evidence to the satisfaction of the court and the plaintiff in his turn would also be entitled to lead evidence to the contrary.

5. This Rule is therefore made absolute. The order moved against is set aside and the application for amendment of the written-statement filed by the petitioner is allowed.

6. There will be no order as to costs in this Rule.

7. Let the affidavit-in-opposition and the affidavit-in-reply filed by the parties in court today be kept on record.


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