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Sekandar Ali Vs. Joy Chand Seraogi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Case NumberCivil Revn. No. 226 of 1947
Judge
Reported inAIR1950Cal566
ActsCode of Civil Procedure (CPC) , 1908 - Order 6, Rule 17 - Order 21, Rules 101 and 103; ;Limitation Act, 1908 - Schedule - Article 11A
AppellantSekandar Ali
RespondentJoy Chand Seraogi and ors.
Appellant AdvocateA.D. Mukherjee, Adv.
Respondent AdvocateRabindra Nath Bhattacharjya, Adv.;Ramendra Mohan Majumdar, Adv.
Excerpt:
- .....which led up to this present litigation.2. all the properties in suit belonged originally to two persons, eakub and ebrahim. on 20th march 1923 they executed a karbarnama charging the properties of schedule kha of the plaint which included four items out of the ka schedule properties, in favour of opposite party 1 and the predecessor of the opposite parties 2 to 5. on 28th june 1926, one of these persons viz., ebrahim executed a mortgage bond in favour of the present petitioner's son in respect of six items of the ka properties which included two out of the four items mentioned in schedule kha. on 9th march 1931, eakub executed another mortgage bond in favour of the petitioner in respect of four items of properties of which two were covered by the karbarnama bond in favour of the.....
Judgment:

1. This rule is directed against an order of the learned Subordinate Judge of Murshidabad rejecting an application for amendment of a plaint. As originally filed on 28th August 1915, the plaint asked for a declaration of title to certain properties and for redemption of mortgage as regards certain other properties and for delivery of khas possession of all these properties. For an appreciation of the nature of the alteration sought to be made by the amendment which was prayed for but rejected, it is necessary to mention certain facts which led up to this present litigation.

2. All the properties in suit belonged originally to two persons, Eakub and Ebrahim. On 20th March 1923 they executed a karbarnama charging the properties of schedule kha of the plaint which included four items out of the ka schedule properties, in favour of opposite party 1 and the predecessor of the opposite parties 2 to 5. On 28th June 1926, one of these persons viz., Ebrahim executed a mortgage bond in favour of the present petitioner's son in respect of six items of the ka properties which included two out of the four items mentioned in schedule kha. On 9th March 1931, Eakub executed another mortgage bond in favour of the petitioner in respect of four items of properties of which two were covered by the karbarnama bond in favour of the opposite parties. On 26th April 1933, the opposite party 1 and the predecessor of opposite parties 2 to 5 brought a suit to enforce the mortgage created by the karbarnama against the mortgagors without impleading the puisne mortgagees. They obtained a decree and in execution of the decree for sale purchased the properties covered by the karbarnama, The entire decretal dues were however not satisfied by the sale and they applied for and obtained a personal decree against the mortgagors and in execution of the same purchased on 4th July 1942 the properties not covered by the karbarnama. On this date, viz., 4th July 1942, there were pending before the Court two suits, one by the petitioner, the other by his son to enforce the mortgages give a by Eakub and Ebrahim. Both the suits were brought in the year 1938. The final decrees were obtained on 21st April 1943. In execution of these final decrees the petitioner purchased the properties which had been mortgaged by the two mortgages of 28th June 1926 and 9th March 1931. The petitioner thereafter obtained possession of these properties which he had purchased, which included some of the properties of which the opposite parties had obtained possession in execution of the mortgage decree obtained by them. The opposite party 1 filed an application under O. 21, R. 100, Civil P. C. alleging that he was in possession when on 25th August 1944, he was dispossessed by delivery of possession, and applied to be put into possession. This application succeeded and an order was passed on 27th March 1945, to the effect that the opposite party must be put in possession of these pro-parties.

3. It was this success of the opposite party 1 which compelled the present petitioner to come to the Court and filed the suit, as already mentioned, on 28th August 1945. In that suit, as already mentioned, he, in addition to his prayer for declaration of his right, also made a prayer for redemption of the mortgage. In the meantime the original owners of the properties, Eakub and Ebrahim, filed applications under Section 37A, Bengal Agricultural Debtors Act, for setting aside the sale and for restoration of possession of the properties that were purchased by the opposite parties in execution of the original mortgage decree and the subsequent personal decree. This application succeeded and an order for restoration of possession in favour of Eakub and Ebrahim has been passed. It has been stated before us that the order in favour of Eakub and Ebrahim was later set aside by the District Judge acting under Section 40A, Bengal Agricultural Debtors Act, and that an application against the District Judge's order is now pending in this Court.

4. The petitioner bases his claim to add Eakub and Ebrahim as defendants in his suit on this fact that they have been restored to possession. Obviously, his prayer for possession as against the opposite parties becomes infructuous if these opposite parties had in the meantime been relieved of their possession. It is in these circumstances that the petitioner made the application for amendment of the plaint. There-in he has stated these facts as regards restoration of possession in favour of Eakub and Ebrahim and has prayed that to avoid future trouble, these persons viz., Eakub and Ebrahim should also be added as defendants in the suit, and a prayer be added that the plaintiffs get khas possession of the land on eviction of the defendants from all the suit lands.

5. There can be no doubt as regards the necessity from the plaintiffs' point of view of adding these persons who had obtained possession of some of the lands and asking for relief against them. The point which the Court has to consider in deciding whether to grant or reject an application for amendment of this nature is whether the nature of the suit is substantially changed by this amendment. The learned Subordinate Judge has held that the nature of the suit will certainly be changed if the prayer for amendment of the plaint be allowed. Unfortunately he has not given his reasons for this conclusion. He has also mentioned that the suit had become more than one year old at the time this application was moved and that he was not inclined to entertain the prayer at such a late stage. Accordingly he rejected the prayer for amendment.

6. Ordinarily, when a suit is brought against certain persons, A, B and C for obtaining possession of certain lands said to be in possession of such persons and it is later found that another person D is in possession of some of the properties, it is necessary and proper that D should be brought on the record. It will however be unreasonable to grant such a prayer for bringing D on the record if at the time the prayer is made, the relief as against D is barred by limitation.

7. Mr. Bhattacharjya on behalf of the opposite party contends that this being a suit under the provisions of Order 21, Rule 103, Civil P. C., has to be brought within one year from the date of the order under Rule 101. The suit, as originally instituted, was brought within this date. But the prayer for amendment is made at a time when the period of one year has already passed. His contention is that the plaintiff's relief as against Eakub and Ebrahim, is barred by limitation.

8. I do not think that it is correct to say that because a suit has been brought by a party under the provisions of Order 21, Rule 108, Civil P. C. nothing else except the relief which is mentioned in Rule 103 can be included in such a suit. In the present case, as already mentioned, a prayer for redemption has been asked for though clearly relief for redemption is not one of the matters referred to in Rule 103. If Eakub and Ebrahim had been the persons in whose favour the order under Order 21, Rule 100 had been passed, I would have agreed with the learned advocate for the opposite party that the suit as against them should also be brought within the period of one year. I am unable to see that the prayer as against them is of the nature contemplated in Rule 103 of Order 21, Civil P. C., and consequently I cannot agree that the relief as against these persons is barred by limitation on account of the suit not being brought within one year after the order was passed in favour of certain other persons under Rule 101 of Order 21, Civil P. C.

9. Mr. Bhattacharjya contends that the very fact that the relief now sought for is not of the nature contemplated in Rule 103, justifies a conclusion that the nature of the suit will be altered substantially if these persons are added as parties and relief sought against them. With this we are unable to agree. The relief which the plaintiff has sought is substantially for delivery of possession to him of certain lands on declaration of his title. The fact that some persons other than the original defendants are now found to be in possession of certain of the lands has necessitated the addition of such other persons in the category of defendants and the seeking of relief for recovery of possession as against them. To refuse this amendment and to drive the plaintiff to have recourse to the Courts by a separate suit will be, in my opinion, to encourage unnecessary multiplication of suits against which the Courts have always set their faces.

10. On consideration of all these circumstances we are of opinion that there will be no such substantial alteration of the nature of the suit by the amendment which will justify the Court in rejecting the prayer for amendment. Accordingly we set aside the order passed by the learned Subordinate Judge and order that the plaint be amended as sought for.

11. The rule is accordingly made absolute but there will be no order as to costs,


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