NOOR MOHAMMAD SHEIKH Vs. KASHEM ALI SHEIKH

JUDGEMENT

(1.) The cause of action, according to the plaintiff, is the threatened act of dispossession. The plaintiff claims that on 15th September, 2007 the defendants tried to dispossess the plaintiff and in view thereof the plaintiff was compelled to institute the present suit. Thereafter the suit progressed and the plaintiff filed its evidence on affidavit. During crossexamination on 19th November, 2008 the plaintiff stated that during the pendency of the suit he was dispossessed on 24th December, 2007. In the application for amendment the plaintiff stated that although he was dispossessed in respect of some portion of the suit premises on 24th December, 2007 but the said fact could not be informed to the learned advocate who was conducting the suit on behalf of the plaintiff. It was stated that due to unintentional mistake, the said fact was not brought to the notice of the learned advocate during the pendency of the suit proceeding and accordingly the petitioner prayed for amendment of the plaint by incorporating the prayer for decree for khas possession of the schedule property.

(2.) In resisting the said claim it is contended by Mr. Bhattacharyya, learned counsel appearing for the opposite parties that during cross-examination the plaintiff admitted that Kashem forcibly had taken possession of the suit property and since last year they are in possession. In the cross-examination the plaintiff however, did not specify the exact date of dispossession but it is stated that the defendant had forcibly entered the suit property and had taken the possession of the suit property. It was after such cross-examination the application for amendment of the plaint was filed seeking recovery of possession. Mr. Bhattacharyya has submitted that this application is required to be dismissed on the ground that the plaintiff has failed to fulfill the twin test as contemplated in the amended provision of the Code of Civil Procedure namely Order 6 Rule 17 of the Code of Civil Procedure. It was submitted that the plaintiff was aware of the fact that he was dispossessed prior to filing of the suit and prior to trial and raising these issues for the first time after commencement of the trial during the stage of hearing is impermissible. In this context, he relied upon a decision of the Supreme Court in the case of Rajkumar Gurawara vs. S. K. Sarwagi & Co. (P) Ltd., 2008 14 SCC 364. In Rajkumar Gurawara the appellant filed a suit seeking declaration of his exclusive rights to do mining operation in the suit property. On 8th July, 2002 the appellant came to know that the respondent no. 2 invited some companies to take the suit lands on lease against the rights and interests of the appellant. On 20th August, 2002 the appellant filed the original suit being no. 6/02 seeking declaration of his exclusive right to do mining operation, to use and sell over the suit lands against the respondent no 2's infringement of such exclusive right of the appellant over the suit lands. During the pendency of the suit, the second defendant was impleaded. The appellant after closing of evidence and during the course of argument filed an application under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure for amendment of the plaint praying for possession over the plaint schedule mentioned property from the defendants and for grant of damages in favour of the plaintiff for their mining operation from the defendants and for grant of damages. In this factual context, the order of the learned Additional District Judge in allowing the application for amendment was considered. In deciding the said application the Hon'ble Supreme Court held as follows:

(3.) In my respectful reading of the said judgment it appears that the test of due diligence would apply with greater vigour in a situation where not only there is commencement of the trial but there is completion of the evidence and in the event such amendment is allowed serious prejudice would be caused to the opposite party. Mr. Bhattacharya also in this regard referred to a decision of the Supreme Court in the case of J. Samuel and others vs. Gattu Mahesh and Others, 2012 2 SCC 300 and submitted that unless the petitioner has been able to demonstrate that in spite of due diligence such amendment application could not have been filed earlier or if the said application lacks due diligence, the Court has no jurisdiction to allow such amendment. In J. Samuel in a suit for specific performance the plaintiff failed to state the essential pleading which is mandatory in terms of Section 16 (c) of the Specific Relief Act. In view of lack of such pleading, the suit itself is not maintainable. Such inherent defect was sought to be cured by taking an application for amendment on the plea that due to typographical error such pleading was omitted. This was disbelieved. In a suit for specific performance, it is mandatorily required that the plaintiff must state that he is ready and willing to perform his obligation and in the absence of such essential pleading, he is not entitled to a decree for specific performance. In fact, the suit may fail on that ground. This was sought to be pleasded by adopting a backdrop procedure and on the plea that due to 'type mistake' such essential averment was omitted. The amendment in the case of J. Samuel runs into few sentences.