Hazra Bibi And Others v. Fathima Bibi And Others

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/5/2022 Hazra Bibi and others Vs.

Fathima Bibi and others Mr. Gopala Binnu Kumar .... for the petitioners Ms Anjili Nag ... for the opposite party nos.1 to 9 Mr.V.D.Sivabalan ... for the opposite party Nos.10 to 16 April 08, 2024 [SR] Item No. 16 The revisional application is directed against the order No. 101 dated January 21, 2022 passed in Title Suit No.09 of 2015 by which, an application for amendment of the written statement was disallowed on the ground of not only delay but also acquiescence by the deceased original defendant as also Limitation. Learned advocate appearing for the petitioners submits that, the petitioners became aware of the so called allotment in favour of the plaintiffs, of the suit property, in 1942, subsequent to a response to an application made under the Rights to Information Act. He submits that, the petitioners became aware of the date of birth of the plaintiff was stated as 1932 and that the allotment was claimed to be made in 1942. He submits that, the same is a fraud committed by the plaintiffs.

Learned advocate appearing for the writ petitioners relies upon (2020) 2 SCC 394 (Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri and others ) and submits that, the a procedural law should not be strictly construed so as to defeat the valid claim of the

applicant for amendment. He relies upon the paragraphs 11 and 20 of such report.

Learned advocate appearing for the plaintiffs/opposite parties submits that, the suit was filed in 2011 and is pending since then. Original defendant No.9 expired in 2015. Subsequent thereto, the petitioners were substituted as heirs and legal representatives of the original defendant no.9. The original defendant no.9 did not make up the issues sought to be raised by the proposed amendment. She submits that the petitioners seek to introduce a counter claim by way of an amendment of the written statement that too after the issues in the suit was framed and the trial commenced with the plaintiffs evidence in the form of affidavit. She draws the attention of the Court that the relief in the counterclaim relates to the document of 1946 which is past and concluded.

The issue with regard to such document is sought to be raised in 2020 by way of the proposed amendment. She relies upon 2009(1) SCC (Civil) 563 (Vidyabai and others vs. Padmalatha and another), 2020 INSC 830 (Satyender and others vs. Saroj and others) and 2020(1) PLR 732 (Ashok Kumar Kalra vs. Wing Cdr Surendra Agnihotri and another ) and submits that, in the facts of the present case, issues were framed in the suit and subsequent thereto the application for amendment was filed.

In the facts of the present case, the suit for declaration and injunction was filed by the opposite parties against a number of persons who were arraigned as defendants. The original defendant no.9 filed a written statement contesting the suit. The original defendant no.9 did not take up the issue with regard to the document in question. The original defendant no.9 expired in 2015.

On his death, the heirs and legal representatives of the defendant no.9 were brought on record. The petitioners before the court are the heirs and legal representatives of the original defendant no.9. The petitioners applied under the Rights to Information Act in 2020 and obtained information with regard to the suit property. Subsequently, they filed an application for amendment of the written statement proposing to introduce a counter claim, which was dismissed by the impugned order.

Between the period of the filing of the suit of the application for amendment, Court framed issues. Plaintiffs filed evidence on affidavit in lieu of examination in chief.

Ashok Kumar Kalra (supra) relied upon by the petitioners, is of the view that, Order VIII Rule 6A of the Civil Procedure code 1908 does not put an embargo on filing of counter claim after filing the written statement. It observed that the restriction is only with respect to accrual of the cause of action. Subsequently, after Ashok Kumar Kalra (supra) was rendered by the Supreme Court, parties therein, approached the Supreme Court in 2020(1) PLR 732 where, taking note of its earlier decision, the Supreme Court held that counter claim filed after the issues were framed and that such counter claim cannot be filed in view of the ratio in Ashok Kumar Kalra (Supra).

Satyendra and other (Supra) was rendered in a second appeal. Vidyabai and others (supra) considers Court's jurisdiction to amend the pleadings after commencement of the trial. It observed that, Court can allow amendment before the commencement of the trial and not after that.

In the present case, the Court is informed that after the framing of issues, the plaintiffs filed affidavit of evidence in lieu of examination in chief prior to the application for amendment being filed by the petitioners.

In such circumstances, the application for written statement being filed after framing of issues and after commencement of trial in the sense that, the plaintiffs filed the affidavit of evidence in lieu of examination in chief, I am of the view that the application for amendment of the written statement cannot be allowed. Moreover, the petitioners before the Court stepped into the shoes of the original defendant no.9 who filed the written statement. The original defendant no.9 never agitated the points sought to be raised by the petitioners by the proposed amendments.

In the application for proposed amendment, it is not the averment of the petitioners that, the original defendant no.9 was not aware of the factual scenario that the petitioners sought to introduce by the proposed amendment.

In such circumstances, I find no material irregularity in the impugned order calling for any interference of the High Court under Article 227 of the Constitution of India.

CO/5/2022 is dismissed without any order as to costs. ( Debangsu Basak, J. )