Ranjit Dutta vs Jatindra Mohan Sen.

At the very outset this Court must record that the court of appeal below has elaborately discussed the various judgments cited before him in addressing the core issue involved in the case, which is a deciding factor.

An application for amendment of the plaint and an application to adduce additional evidence filed before the appellate court are allowed. It is specifically observed by the court of appeal below that the amendment is aimed to prove the title over the suit property and an additional evidence becomes necessitated to prove the deed of title, which subsequently came to the knowledge of the plaintiff/opposite party.

The plaintiff/opposite party filed a suit for recovery of possession upon revocation of licence. It is alleged in the plaint that the father of the plaintiff/opposite party purchased the said property by registered deed of sale and since then he was occupying therein. Upon death of the father, the plaintiff/opposite party being the son inherited the estate left by him and became the owner thereof. The defendant/petitioner is a son of his paternal aunt and was permitted to live in the said house on an assurance that the possession would be given back. Since the plaintiff''s family grew by passage of time and more accommodation is required, the defendant was requested to vacate the premises and upon his refusal, the plaintiff was compelled to filed the said suit.

The defendant/petitioner took a defence that the said property was purchased from his money in the name of the father of the plaintiff as the plaintiff''s father at the relevant point of time was still residing in Bangladesh. It is further alleged that the plaintiff is not the only son but has two other brothers and, therefore, his claim as absolute owner is incorrect.

Curiously enough, the trial court dismissed the suit with categorical findings that both the parties have failed to prove their respective cases. One of the main grounds for rejection of the said plaint appears to be that the plaintiff/opposite party has failed to prove his title over the property.

At the appellate stage, an application for amendment of the plaint as well as an application for production of the additional evidence were taken out by the plaintiff/opposite party as the deed of sale was subsequently recovered, which would be evident from the averments made in paragraph 4 of the application for production of the additional evidence.

The learned advocate for the petitioner submits that the court should not permit a litigant to amend the pleading at the appellate stage to fill up the lacuna, which was found by the trial court to be fatal. It is further submitted that the court of appeal below erroneously held that the proposed amendment is restricted to prove the title over the property when there was a larger issue relating to the inheritance by the plaintiff/opposite party in denial of other two brothers.

I am not impressed with the aforesaid submissions for the simple reason that there is no fetter either under Order VI Rule 17 of the Code of Civil Procedure or otherwise to permit a party to amend the pleading at the appellate stage. So far as the additional evidence is concerned, there are set parameters under Order XLI Rule 27 of the Code and, therefore, the appellate court has to consider that the appellate court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause.

It is a specific case of the plaintiff/opposite party that the registered deed of sale was not in his possession during the trial of the suit and could only discovered on 10th May 2017 while cleaning the storeroom. The trial court dismissed the suit as the plaintiff/opposite party failed to prove the title over the property.

If the plaintiff/opposite party came to possess the deed of title over the property in course of the appeal, this Court, therefore, feels that denial to amend the pleading or to produce additional evidence would cause greater hardship to him than the defendant/petitioner. Naturally, the appellate court has to consider the case based on title and the deed of sale would be one of the factors in deciding the same.

The apprehension of the defendant/petitioner that it would cause prejudice to him has no substance and the court has to consider the appeal taking into account the evidence already adduced as well as the materials produced by the respective parties.

The High Court should seldom interfere with the order passed by the trial court exercising discretion unless it is demonstrated that such exercise is irrational, unreasonable and beyond the legal parameters. Mere production of the deed on title as additional evidence cannot be said to cause serious prejudice to the defendant/petitioner but would assist the court in delivering the judgment on merit.

This Court, therefore, does not find any illegality and/or material irregularity in the impugned order passed by the court of appeal below.

The revisional application, therefore, fails.

There shall, however, be no order as to costs.