IN RE: SM. TARADEVI CHURIWALLA Vs. STATE

JUDGEMENT

(1.) The present revisional application challenging the order dated 19 -12 -87 passed by the learned Munsif, 3rd Additional Court, at Alipore in Title Suit No. 69 of 84 is considered along with another revisional application challenging the order of the same date passed by the same court in title suit no. 68 of 84. Both the suits are being heard analogously in the court below Sm. Taradevi Churiwalla is the plaintiff in Title Suit No. 40 of 82 being renumbered a 68 of 84 being renumbered as Title Suit No. 69 of 84. Both the suits are pending in the 3rd Additional Court of Munsif at Alipore. In the earlier suit Sm. Taradevi Churiwalla as plaintiff has sought for declaration of title and permanent injunction and other reliefs claiming, inter alia, that she has acquired a tenancy right under the provisions of W. B. Premises Tenancy Act. The second suit has been filed by Sm. Sitadevi Chowdhury for recovery of possession after the efflux of the period of lease granted by Sm. Sitadevi Chowdhury in favour of Sm. Taradevi Churiwalla. It is an admitted case that a deed of lease dated 13th February, 1961 has been executed by and between the parties for a lease of 21 years. While a notice to quit was given by the lessor to the lessee, the lessee as plaintiff (sic)as filed a (sic)f claiming tenancy to be governed under W. B. Premises Tenancy Act and for other reliefs as stated in the plaint of title suit no. 68 of 84. Both the aforesaid suits were taken up for peremptory hearing and he evidence has been adduced by the parties.. The matter came to this Court from time to time and there was specific a direction to expedite trial of both the suits.' After closure of the evidences, an application for amendment of plaint in title suit no. 68 of 84 and simultaneously an application for amendment of the written statement has been filed in Title Suit No. 69 of 84 by Sm. Taradevi Churiwalla. Learned court below has considered both the applications and by the impugned orders dismissed the said applications. Feeling aggrieved, the petitioner has come to this Court in revision, challenging the order of refusal of the prayer for amendment of the plaint as well as amendment of the written statement in title suit nos. 68 of 1984 and 69 of 84, respectively. Having gone through the pleadings of the parties and the proposed prayer for amendment of plaint, it appears that the petitioner who is plaintiff in a suit claiming tenancy right to be governed under W. B. Premises Tenancy Act and being defendant to contest the suit after the efflux of the period of lease has sought to amend the pleadings alleging, inter alia, that before the deed of lease, the tenancy in favour of the petitioner has started on the basis of a receipt receiving an advance amount and the deed of lease is a mere paper transaction. It is claimed by the proposed amendment that the tenancy has really started prior to the execution of the deed of lease and the tenancy is governed by W. B. Premises Tenancy Act and as such the tenancy in question is de hors the deed of lease dated 13th February, 1961.

(2.) Considering the submissions of both sides and considering the documents of the case and the stage where the proceeding has reached, the learned Court below has refused the prayer for amendment of the plaint as well as the prayer for amendment of the written statement in the two suits where the petitioner is the plaintiff in one suit and the defendant in the other.

(3.) In support of the revisional application, Mr. Roychowdhury along with Mr. S. Mukherjee made elaborate submissions that without looking to the antecedents of the case or any step taken by the petitioner to prolong the litigation the court below should have considered the proposed amendment to find out as to whether by the proposed amendment there is likelihood of any change of nature and character of the pleadings. It is strongly argued that there should be proper appreciation as to amendment of the written statement giving it a liberal view where a party is permitted to make out even inconsistent plea and make contradictory statement. Further it is strongly submitted that the original receipt was not properly appreciated at an earlier stage and upon discovery of such document it is absolutely material to amend the pleading such an amendment would not be prejudicial to the interest of the other side. Apart from other considerations, it would be comprehensively adjudicated and there is no bar to allow the amendment as proposed. In support of his contention Mr. Roychowdhury has referred to a decision reported in AIR 1969 SC 1267 (Jai Jai Ram Monohar Lal v/s. National Building Material Supply). It has been found by the Hon'ble Supreme Court that rules of procedure are intended to be the handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, in advertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However, negligent or careless may have been the first omission, and however old the proposed amendment, the amendment may be allowed if it is found that can be made without injustice to the other side. Mr. Roychowdhury has further stressed the point by referring to another decision reported in AIR 1983 SC P 462 (Panchdeo Narayan Srivastava v/s. Rumari Jyoti Sahay & Anr.). The scope of Sec. 115 of the Code of Civil Procedure and Order 6. R.17 Civil Procedure Code were considered by observing that even an admission made by the party may be withdrawn or may be explained away. Therefore, it cannot be said that by amendment an admission of fact cannot be withdrawn. Furthermore, another decision was cited from the Bar in favour of the case of the petitioner reported in 1984(1) SCC P. 688 (Haridas Ail Das Thadani & Ors. v/s. Godrej Rustam Kermani). It was found in the said decision that the Court should be extremely liberal in granting prayer of amendment of pleadings unless serious injustice and any irreparable loss is caused to the otherside. A revision court ought not to lightly interfere with a discretion exercised in allowing amendment in the absence of cogent reasons or compelling circumstances. The test for allowing the amendment is to find whether the proposed amendment works in serious injustice to the other side. In the said case the District Judge allowed the amendment and the High Court interfered with the same and it was observed by the Hon'ble Supreme Court that a revision court, ought not to lightly interfere with a discretion exercised in allowing amendment in the absence of cogent reasons to compelling circumstances.