THE HIGH COURT OF TRIPURA AGARTALA CRP No.29 of 2017 Smt. [ENTITY] (minor), daughter of Sri [ENTITY], represented by her natural guardian, her father Sri [ENTITY], resident of village: Ashampara, P.O. Aurangabad, P.S. Suit, District: Murshidabad, PIN: 742201. West Bengal Petitioner - Vs - Smt. [ENTITY], wife of Sri Hari Mohan Saha, resident of Badar Mokam, Badar Saheb Bari Road, P.S. Radhakishorepur, P.O. Radhakishorepur, District: Gomati Tripura, Tripura, PIN: 7990120 Respondent
BEFORE THE HON'BLE MR. JUSTICE S. TALAPATRA For the petitioner : Mr. [ENTITY], Advocate For the respondent : Ms. [ENTITY], Advocate Date of hearing and delivery of judgment and order : 05.03.2018 Whether fit for reporting : YES Judgment and Order (Oral) Heard Mr. [ENTITY], learned counsel appearing for the petitioner as well as Ms. [ENTITY], learned counsel appearing for the defendant-respondent.
02. This is an application under [SECTION] of the [ACT] questioning the legality of the order dated 17.04.2017, delivered in [CASE NUMBER] arising from [CASE NUMBER]. The plaintiff who is, being minor, represented by her natural guardian and father Sri [ENTITY] filed a petition for amendment of the plaint in the said suit, in the wake of submission of the written statement by the respondent. By the said application dated 17.02.2017, the plaintiff- petitioner sought amendment in the cause title of the plaint and some addition or substitution of pleadings. Such amendment was proposed in paras-5, 6 and 9.
03. In addition, the plaintiff-petitioner sought substitution of para-10 by adding the new pleadings. The plaintiff-petitioner has further proposed amendment of para-11 and incorporation of a new relief viz. declaration that the plaintiff-petitioner (the minor) is the owner of the suit property by virtue of the gift deed dated 17.04.2009.
04. The defendant-respondent had robustly opposed the said prayer for the amendment and finally on hearing the parties by the order dated 17.04.2017, the trial court has rejected the prayer for amendment on the ground that amendment as prayed for is barred by [SECTION] of the [ACT]. Moreover, the facts as sought to be incorporated by way of amendment were within the knowledge of the plaintiff before commencement of trial. Hence, the trial court is of the opinion that the same could have been incorporated before commencement of the trial. Moreover, if the amendment is allowed, the nature of suit will substantially be changed from a simple suit of recovery of possession to a suit of declaration of title and recovery of possession.
05. Mr. [ENTITY], learned counsel did not fail to bring to the notice of this court that the recovery of possession was asked on the basis of the title over the suit land/property. For inadvertence, no formal relief in the form of declaration was urged by the plaintiff. The trial court has also framed one issue in respect of the title. The plaintiff has, for determining that substantive question and obviating all nebulousness sought to amend the plaint by incorporating the relevant pleadings as well as the relief.
06. Ms. [ENTITY], learned counsel appearing for the respondent has opposed the said analogy and sought to defend the impugned order dated 17.04.2017.
07. The trial court has founded its observation on the proviso to [SECTION] of the [ACT] which reads, after the amendment, as under:
"17. Amendment of Pleadings.- The Court may at any stage at the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."
08. It is apparent that the trial court has given literal interpretation to the proviso and thus the trial court has read the proviso in isolation of the principal provision under [SECTION] of the [ACT] which lays that the amendment can be allowed to be carried out at any stage of the proceeding. The parties can be allowed to amend the pleadings in such a manner that may be necessary for the purpose of determining the real questions in controversy between the parties. The substantive purpose cannot be allowed to be frittered away by the proviso below [SECTION] of the [ACT].
09. In [PRECEDENT] the apex court has enunciated the law as follows:
"The object of the rule is that Courts should try the merits of the case that come before them and should, consequently, allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. This Court, in a series of decisions has held that the power to allow the amendment is wide and can be exercised at any stage of the proceeding in the interest of justice. The main purpose of allowing the amendment is to minimize the litigation and the plea that the relief sought by way of amendment was barred by time is to be considered in the light of the facts and circumstances of each case. The above principles have been reiterated by this Court in [PRECEDENT] and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Others, (2012) 5 SCC
337. Keeping the above principles in mind."
10. Based on the said interpretation as provided by the apex court in [PRECEDENT] (supra), this court is of the view that since the trial court itself has framed an issue relating to the title of the suit land/property, it is required that the plaintiff is permitted to carry out the amendment as proposed. It cannot be denied that the plaintiff had omitted the proposed relief at the time of institution of the suit. For the absence of specific pleading in respect of 'due diligence', the ends of substantive justice cannot be ignored.
11. In this perspective, the plaintiff-petitioner shall be allowed to carry out the amendment as proposed. It is accordingly ordered. The amended plaint shall be filed within 15(fifteen) days from today in the trial court, in failure to do so, the amendment shall stands automatically discarded. Needless to say that if the amended plaint is filed and in view of the incorporated fact or relief the defendant- respondent finds it essential to dispute, rebut or incorporate further pleadings, the defendant-respondent shall be allowed to file the additional written statement. From that stage, the suit shall proceed.
Having observed thus, this petition stands allowed. There shall be no order as to costs.
JUDGE [ENTITY]