Apurba Kumar Dhar vs Smt. Namita Dhar and Another

S.N. Phukan, J.—This Revision Petition is by the Defendant against the order of the learned Munsiff, Dhemaji dated 23.11.1187 passed in Title Suit No. 21 of 1987. By the impugned order the learned trial court allowed the prayer of the Plaintiff/Respondent to amend the plaints as prayed for.

Briefly stated Plaintiff No. 1 who is the wife of Plaintiff No. 2 filed the suit in question praying for a decree for permanent injunction against the Defendant restraining him and his man from interfering with the peaceful possession of the shop of the Plaintiff. Plaintiff No. 2, the husband of Plaintiff No. 1 was insane and his wife Plaintiff No. 1 has filed this suit on his behalf as next friend. According to Plaintiff, Plaintiff No. 2 purchased the plot of land constructed a house, paid rent and started a shop of repairing and selling of watch and radio. Due to illness Plaintiff No, 2 had to be taken away from Dhemaji for treatment and taking advantage of the absence of the Plaintiffs, the Defendant who is the younger brother of Plaintiff No. 1 and who was managing the shop on behalf of the Plaintiffs misappropriated some amount. Accounts were asked for which were not given. Hence the suit was filed for a permanent injunction as stated above.

In the written statement it was disclosed that there was a partnership deed between the Plaintiff No. 2 and the Defendant and on the basis of the said disclosure a petition was filed praying for an amendment of the plaint which was closed by order dated 9.9.1987. Subsequently, the present petition for amendment of the plaint was filed and the said petition is available at Annexure-D to the petition. The Plaintiffs want to amend the plaint, inter alia stating that the partnership deed was executed during the period of lunacy of Plaintiff No. 1 and as such the said deed is invalid and liable to be set aside. It was further pleaded that para 4 of the plaint may be amended regarding the year of illness of the Plaintiff i.e. for the year 1984, the year 1983, was to be substituted on the ground that it was a clerical mistake.

By the impugned order the amendment was allowed, inter alia, on the ground that real controversy is the ownership and management of the disputed shop and if the amendment is rejected there would be multiplicity of suits and that no injustice to any of the parties would be caused if the amendment is allowed. The learned court was of the opinion that genuineness of the partnership deed was one of the most important question of controversy between the parties. Regarding the year of commencement of lunacy of Plaintiff No. 2, the learned court accepted that it was a clerical mistake.

Drawing my attention to the order dated 9.9.1987 Mr. G.P. Bhowmik, learned Counsel for the Petitioner has urged that as the earlier petition for amendment was not pressed the present petition is hit by Section 11, Code of Civil Procedure. In reply Mr. Phukan learned Counsel for the Respondent has urged that there was no clear order that the earlier petition was hot pressed and that even if it was not pressed there was no bar under CPC to file another petition.

The order dated 9.9.1987 is in Assamese and is available at Annexure-B and the English translation has also been furnished. The learned court observed as follows:

Plaintiff by petition No. 374/87 wants to file counter written statement and stated not to amend the plaint. So, separate order is not necessary on the Defendants petition.

In my opinion from this it cannot be concluded that the petition was not pressed and what the Plaintiff wanted was to file a counter written statement for which there is no provision in the Code of Civil Procedure. I am, therefore, unable to accept the contention of Mr. Bhowmik that the earlier petition was not pressed. That apart, I have serious doubt whether Section 11, CPC would come into play in case of such an order.

According to Mr. Bhowmik, if the present amendment is allowed it will give rise to fresh cause of action, inasmuch as, the Plaintiff wanted a declaration that partnership deed is illegal. In reply Mr. Phukan has urged that considering the mental condition of the Plaintiff No. 2, Plaintiff No. 1 came to know about the partnership deed only after the written statement was filed and as such there cannot be any question of new cause of action. I agree with the learned Counsel for the Respondent and in my opinion if the amendment is, allowed it will not give rise to new cause of action. I may note here that Mr. Bhowmik has drawn my attention to para 15 of the plaint wherein the cause of action was the date when the Defendant openly threat the Plaintiff. But I have already held, amendment, if allowed, will not give rise to new cause of action.

According to Mr. Bhowmik, the question has to be decided on the basis of the plaintand not on the basis of written statement. Learned Counsel has urged that nowhere in the plaint the question of partnership deed has been raised. As stated above, Mr. Phukan has stated that the Plaintiff No. 1 came to know about the partnership deed only after written statement was filed. I am unable to accept the contention of Mr. Bhowmik that the petition for amendment has to be decided only on the basis of the plaint and the settled law is that the court can take into account the subsequent facts also in deciding the matter.

Regarding the year according to Mr. Bhowmik no reason has been given. But 1 find that in the petition for amendment it has been specifically stated that there was a clerical mistake and it has been accepted by the learned trial court and I see no reason to interfere with his findings.

Power given for amendment of the pleadings to the court under Order VI, Rule 17 is wide enough and such amendment can be allowed at any stage for the purpose of determining real question in controversy between the parties. In the case in hand the basis of the claim is ownership of the shop premises between the parties, and on that basis injunction has beep prayed. In determining the question of ownership of the Plaintiffs over the shop premises the question of partnership deed has also to be taken into consideration. In this connection Mr. Phukan has placed before me certified copy of the order dated 20.9.1987 passed by the learned Trial Court wherein the learned court noted that as the Plaintiffs have claimed the ownership of the land, they have prayed for the injunction restraining the Defendant. If the question of ownership is decided in the present suit without taking into consideration the partnership deed Section 11, CPC may come into play for a subsequent suit, if filed by the Defendant to establish his partnership right over the suit house.

In view of what has been stated above I find no merit in the present petition and accordingly it is dismissed. No costs.