ASHIM SARKER Vs. CHITRA ZAHIR

JUDGEMENT

(1.) The instant revisional application is directed against order No.11 and order No.12 respectively passed on 4.7.96 and 5.7.96 by the Third Bench of City Civil Court, Calcutta in Title Suit No.974 of 1996.

(2.) The matter is taken up for hearing on contest and detailed submissions have been made by the respective counsels appearing for both the sides. The first order is the order No.11 dated 4.7.96 by which a petition under Order VI Rule 17 of the Code of Civil Procedure stood allowed. It appears from the look of the impugned order that the same is a cryptic one which does not spell out any reasoning. In the backdrop of the same, this court has been invited to look into the matter in question namely, the petition for amendment and also the relevant paragraphs of the connected plaint in order to impress upon this court as to whether the order should be sustained. Though no grounds have been mentioned in the order, but this court has been addressed at length by both the sides for drawing inference to all the possible aspects of the matter so that the court may form its opinion about the legality and/or sustainability of the impugned order. This court has afforded opportunity for marathon hearing to the parties concerned.

(3.) Before going to the question of propriety of the order impugned this court is perplexed with the vexed question about the extent of defendant's right to oppose the application for amendment when the defendant has not entered into the suit pursuant to the notice of summons. It is well-known that amendment here relates to pleading which has been contemplated under Order VI Rule 1 of the Code of Civil Procedure and the same includes both the plaint and the written statement. Therefore, the question of amendment relates to something either about the plaint or of the written statement. There is not scope for confusion with regard to the ambit of the controversy relating to pleadings as they are contemplated under Order VI of the Code of Civil Procedure and Order XIX deals with question of affidavits. A reference may be made in this context to chapters of the Code of Civil Procedure and it appears from the perusal of the relevant chapters of the Code of Civil Procedure that from Order I to Order XX relate to different stages of suit including that of passing of the judgment and decree save and except Order XIX which relates to affidavits. It is salient to mention in this context that Order XXXVIII to Order XL deal with question of interlocutory proceedings during the pendency of the suit. Therefore, interlocutory proceedings and the rules applicable thereto cannot apply strictly in terms of the same relating guidance of the suit. In this context, a reference may be made to Order IX Rule 1 of the Code of Civil Procedure where it has been laid down that on the date fixed in the summons for the defendant to appear and answer, the defendants' appearance will be taken note of and the defendants will be permitted to answer the pleadings contained in the plaint by way of filing of written statement. Save and except in a given situation where the defendants on being served with a copy of the plaint pursuant to service of summons can pray for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure provided the reasons for which they exist. It appears in the record of the proceedings that the defendant was not in the arena of dispute pursuant to the service of summons in the suit and as the defendant did not appear, there was no question for the defendant to answer. In the meantime, before the stage has appeared for the defendant to answer the plaintiff has come with an amended plaint, the copy of which has been served on the defendant/opposite party who has chosen to combat the same instead of coming into the arena of suit. Therefore, so long as defendant has not entered into the field of the suit by making its appearance, the defendant is no longer in the scenario of the scene of the suit and the defendants' participation in any possible combat of pleading will be prospective and dependent on circumstances not known at the relevant point of time. The defendant has not come with its own pleadings in the form of written statement. It is salient to mention that interlocutory proceedings and the stages thereon are different from the stages in the suit. In absence of the written statement being filed the controversy about construction of pleadings have not assumed significance. In the backdrop of the same, the first question to be considered is that if amendment of the plaint is allowed before the entry of the defendant in the suit whether defendant is likely to suffer any injury of irreparable nature. If the plaintiff is prevented from filing its amended plaint whether it is likely to result in material failure of justice. In that context, attention of this court has been drawn to the proviso to section 115 of the amended provisions of the Code of Civil Procedure and the court is make to ponder over the language of the proviso(b) superadded to section 115 of the Code of Civil Procedure where the expression is "the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the parties against whom it was made". Here, this court is confronted with a situation where the court will be required to see as to whether the impugned order will result in material failure of justice or in the alternative, is likely to cause any irreparable injury to the party against whom it was made. Therefore, the concept of irreparable injury to the party is an epithet by way of alternative to failure of justice because of the particular coinage of the expression 'or' which is supposed to have been adopted by the legislature keeping in view the etymological significance of the said preposition. This court while giving effect to the entire provisions of the section 115 together with its proviso, it must be satisfied that it has not resulted in material failure of justice nor it has caused any irreparable injury against whom it was passed. In this context, this court reiterates the provisions of Order IX Rule 1 of the Code of Civil Procedure and if on the day fixed in the summons for the defendant to appear and answer, the defendant is not either served with the notice or has not entered appearance, there is no question of appearance of the defendant in the suit and the question of answering to the pleadings by way of written statement does not and cannot arise. Therefore, in the ordinary situation where defendant has entered appearance, the guiding principles governing Order VI Rule 17 will be radically different from the situation where the defendant has not appeared in terms of Order IX Rule 1 of the Code of Civil Procedure. A reference may be made to the language of Order VI Rule 17 of the Code of Civil Procedure where the court is conferred with the power of jurisdiction of allowing either party to alter its pleadings in such manner and on such terms as it deems fit which is necessary for the determination of the real controversy between the parties. To appreciate the pith and substance of the real controversy the court is required to make indepth analysis of the pleadings and arrive at its own opinion. So far court has construed pleadings, they should speak for themselves and they are required to be interpreted by the court instead of being read in the light of the submission of the parties as to how they have been read by them. Duty is cast upon the court to read for itself and not to appreciate the pleading through the lens of somebody else's eyes, namely, the commentators as how they are being seen by the representatives of the respective parties. Therefore, this court feels that it is saddled with an obligation to arrive at its own opinion about the real question in controversy between the parties. The petitioner for amendment has been made available. The real dispute in controversy has been attempted to be projected in paragraph 23 of the amended plaint but the sum and substance of the claim has been put forward and is projected in paragraph 9 of the original plaint which has its hearing on the controversy in question. It has been submitted by the petitioner that the amendment introduced is by way of eludication of the pith and substance and what has been there in the original plaint and the amended provisions are by way of adumberation to highlight the real controversy in question in terms of its dimension. It has been further submitted that narration as contained in the proposed amendment is projection of the parties' version about the sequence of events in both the films, namely, the original one and the alleged pirated version of the film. In terms of the pleadings, the same will reveal the similarity in production of both the two films for which a detailed investigation is necessary.