SMT. RANI BALA DAS Vs. SMT. BIBHA NASKAR

JUDGEMENT

(1.) This revisional application is directed against the Order dated 26.10.2017 passed by the learned Civil Judge (Senior Division), 2nd Court at Alipore in Title Suit no. 44 of 2013.

(2.) The defendant-petitioner filed an application under Order 6, Rule 17 of the Civil Procedure Code (hereinafter referred to as the Code) seeking amendment of the written statement for incorporating certain facts subsequent to the filing of the suit. The suit is one for specific performance of contract filed by the opposite party to the effect that the defendant entered into an agreement with the plaintiff on 23rd August 2002 for development of the suit property. Subsequently a supplementary agreement dated 23rd July 2007 was also executed. Plaintiff made prayers, inter alia, for a decree for specific performance of these two agreements directing the defendant to act in terms of the said agreements by accepting delivery of possession of the owners' allocation stipulated therein and by directing the defendant to co-operate with the plaintiff in the matter of completing the building; executing and registering all deeds of conveyance that may be transferred by the plaintiff who is the promoter in respect of the suit property. A prayer was also made restraining the defendant from revoking the power of attorney which was granted in favour of the plaintiff by the defendant and not to cancel and/or revoke the same. The suit was filed sometime in 2011 and now numbered as Title Suit no. 44 of 2013. Written statement was filed on 12th June 2012. In the written statement it is the specific averments of the defendant that the purported agreements were made by misrepresentation and fraud and virtually it was without the knowledge of the defendant. In the written statement the defendant has further stated that whatever the plaintiff has done, it was done in the guise of fraud, collusion and in deceitful manner to deceive and cheat the defendant. After filing of the written statement the defendant made a complaint against the plaintiff that no permission was obtained by the plaintiff in compliance of section 3A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act 1993. The said proceeding was initiated on 28th January 2014 and continued for sometime. Ultimately, the final order was passed on 4th April 2017 whereby the authorised officer held that the promoters had not taken any permission from the authorisd officer for construction of the building at premises no. 140 Puprbachal Main Road, Kolkata (700) 078 which is in sheer violation of section 3A of the said Act of 1993. It was held that under section 3A of the said Act the promoter should stop construction at the above premises. The defendants thereafter filed an application for amendment of their written statement reportedly on 17th July 2017 i.e. after the final order was passed by the Authorised Officer under the said Act of 1993. In the application for amendment the petitioner sought to agitate before the learned trial court that subsequent events particularly the development in respect of the order passed under section 3A proceeding by the authorised officer under the said Act of 1993 is very much relevant to the issues involved in the suit. According to the defendant even if the court passes a decree for specific performance of contract, the ultimate performance cannot be done without compliance of section 3A of the aforesaid Act of 1993. Therefore, according to the defendant these subsequent events are very much relevant for deciding the real controversy in question between the parties. On these facts the learned court below took up the application under Order 6, Rule 17 and considering the submission of the defendant and/or written objection filed by the plaintiff came to a conclusion that the application is a belated one and the trial court rejected the application under Order 6, Rule 17. In addition, the learned trial court has held that not only the application has been filed seeking amendment after the trial has commenced but in the meantime the cross examination of PW 1 has already been concluded. The learned court below has pointed out that cross-examination of PW 2 is in progress. According to the learned court below proviso to Order 6, Rule 17 CPC operates as a bar for allowing the application for amendment at this belated stage. However, from the impugned order it cannot be ascertained as to when commencement of trial started and how long it took to complete the recording of evidence of PW 1.

(3.) Mr. Chatterjee, learned Senior advocate appearing for the opposite party-plaintiff has submitted that the subsequent fact which has been sought to be incorporated by way of amendment in the written statement filed by the defendant was within their knowledge as far back as in 2014 which is apparent from the order passed by the authorised officer on 28th January 2014 when the promoter admitted that she did not apply for requisite permission under the said Act of 1993. He also submits that it was the deliberate intention of the defendant to cause delay of trial and, therefore, he has taken out an application for amendment at such a belated stage. He submits that the application for amendment should be rejected on this ground alone. He further adds that although application for amendment has been filed at a belated stage that too after commencement of trial, the defendant has not sought to explain such delay and, therefore, it should be another ground for refusal of the prayer for amendment. He has relied on a decision of Hon'ble Supreme Court in the case of Vidyabati and Ors v. Padmalatha and Anr. reported in AIR 2009 SC 1433 to show that after commencement of trial the court should not allow any kind of amendment. However, on perusal of paragraph 14 it appears that the Hon'ble court considered commencement of trial to be a date after framing of issue. Although this decision was given in 2009, it appears that the said decision did not consider the earlier decision in the case of Baldev singh and Ors. v. Manohar Singh and Anr. Reported in (2006) 6 SCC 498 which has also decided the ratio whether a court should allow the application under Order 6, Rule 17 even after commencement of trial. Although such an issue had already been decided by the Hon'ble apex court in 2006, in the subsequent decision neither it was referred nor the same was considered and, therefore, it is for the court's conscience to accept any one of the two decisions as a rule of precedent. In my view, the earlier decision in Baldev Singh and Ors. is more appropriate in the facts of the present case and, therefore, ratio decided in Baldev Singh and Ors (supra) is accepted in deciding the present case. Mr. Chatterjee also relied on a decision in case of K.B Sharma v. Shri Keerti Karan Dharni and Anr. reported in 2009 (4) ICC. This decision, however, is on different issue wherein the court held that the pleas sought to be raised, by way of amendment, by the defendant no. 1, were already in his knowledge at the time of filing the original written statement and it was not that these pleas cropped up, after the filing of the written statement by him which is not the case here. Therefore, the decisions have no bearing in the present controversy.