IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction Original Side Before: The Hon’ble Justice Debangsu Basak G.A.No.2581 of 2013 C.S.No.116 of 1998 Ghanashyam Das Shah versus The Bengal Bonded Warehouse Association For the Appellants : Mr.Ranjan Deb, Sr.Advocate Mr.Ashish Chakroborty, Advocate Mr.R.L.Mitra, Advocate Ms.Priyanka Dhar, Advocate For the Defendants : Mr.Abhrajit Mitra, Advocate Mr.D.N.Sharma, Advocate Mr.Amitava Das, Advocate Mr.Gaurav Khaitan, Advocate Mr.Debant Mukherjee, Advocate Ms.Pritha Basu, Advocate Heard on : January 6, 2014 Judgment on : January 10, 2014 DEBANGSU BASAK, J.
Post commencement of trial the plaintiff applied for amendment of the plaint by way of the present application.
Suit was for mandatory and perpetual injunction.
The plaintiff claimed tenancy under the defendant in respect of 6,000 square feet in the second floor of a building situate at premises No.25, Netaji Subhas Road, Kolkata at a monthly rent of Rs.1,700.
The plaintiff averred that due to a fire in January 1, 1995 the building at the said premises was damaged.
It also averred that the defendant was trying to cause prejudice to the plaintiff by seeking the assistance of the Kolkata Municipal Corporation authorities to demolish the building.
The plaintiff sought to protect its tenancy.
It sought mandatory injunction directing the defendant to restore, repair and reconstruct the building and also sought perpetual injunction against the defendant from obstructing the reconstruction or the repair works and from constructing a different building.
Apparently the building at said premises was in a dilapidated condition giving rise to two suits by two tenants.
Another tenant of the said premises Vijaya Bank filed a suit being CS No.170 of 1995.
In such suit an order of status quo in respect of the said premises was passed by the Hon’ble Appeal Court on December 2, 1997.
In this suit the plaintiff applied for appointment of a receiver to find out the state of affairs of the premises in question.
By the order dated February 23, 2012 passed in such application it was held that the apprehensions expressed by the plaintiff and reliefs sought for by the plaintiff were fully justified.
However, no order was passed in view of the specific undertaking given by the defendant that there would be no change in the nature and character of the tenancy premises in question, namely, the subject matter of the suit, without the leave of the Court.
The plaintiff claimed that the defendant through local hooligans caused extensive damage to the building at the said premises.
In order to protect its rights, the plaintiff applied in September 2012 for diveRs.reliefs.
Such application was disposed of by an order dated September 13, 2012 which directed that the existing status quo order and the undertaking given by the defendant as recorded in the order dated February 3, 2012 were to be strictly complied with.
The appeal carried by the plaintiff from the order dated September 13, 2012 was disposed of by an order dated February 13, 2013.
The judgment and order dated September 13, 2012 was affirmed with the modification that such order would not prejudice the statutory rights of the Kolkata Municipal Corporation to take steps as against the dilapidated building as it thought fit and proper.
The parties were allowed to approach the Suit Court for listing the matter for hearing.
Subsequent to February 13, 2013 the suit was not heard.
In the suit evidence was adduced by the parties.
After completion of evidence the plaintiff commenced arguments on January 7, 2007.
The plaintiff concluded their arguments on March 25, 2010.
According to the plaintiff the defendant obtained adjournments of the bearing of the suit on one pretext or the other and did not conclude their submissions.
The plaintiff thereafter made the present application and sought amendment of the plaint as indicated in red ink on a copy of the plaint annexed to the application and marked as Annexure ‘U’ at Pages 385 to 401 of the application.
Six new paragraphs were sought to be added in the body of the plaint.
Two prayers were also sought to be introduced by way of the proposed amendments.
The sum and substance of the proposed amendment related to the demolition caused by the Kolkata Municipal Corporation to a substantial portion of the building.
As tenant the plaintiff claimed right to be accommodated in the new building that may be constructed at the said premises and sought permanent injunction as well as mandatory injunction to such effect.
Mr.Ashish Chakroborty learned Advocate led by Mr.Ranjan Deb learned Senior Advocate appeared on behalf of the plaintiff.
It was contended on behalf of the plaintiff that the issue as to whether the plaintiff was a monthly tenant under the defendant or not and whether the tenancy of the plaintiff came to an end on January 1, 1995 as claimed by the defendant in their written statement were not decided as yet.
By the proposed amendment none of the issues already raised were altered or affected.
Subsequent developments during the pendency of the suit was sought to be introduced by way of the proposed amendment and consequent reliefs with regard thereto were sought.
The proposed amendments, if allowed, would not change the nature and character of the suit.
The tenancy of the plaintiff was governed by the West Bengal Premises Tenancy Act, 1956 and that the plaintiff’s tenancy did not stand extinguished on January 1, 1995 as wrongfully claimed by the defendant.
In any event with the Corporation demolishing a substantial portion of the building during the pendency of the suit the plaintiff was entitled to be accommodated in a new building that may be constructed at the said premises.
Furthermore, the order of status quo was continuing in this suit also.
In support of the contention, that the tenancy did not stand extinguished with the demolition of a substantial portion of the building at the suit premises Mr.Chakroborty relied on 2012 Volume 1 Calcutta Law Times page 402 (Bishnu Priya Pharmacy v.
Subhas Sadan Trust).Mr.Chakroborty submitted that the notice for demolition issued by the Kolkata Municipal Corporation presupposed an existing structure.
The demolition was carried out in December 2012.
Therefore, according to him the contention of the defendant that the tenancy of the plaintiff stood extinguished on January 1, 1995 was without basis.
Mr.Chakroborty relied on All India Reporter 2002 Supreme Court page 3369 (Sampath Kumar v.
Ayyakannu & Anr.) for the proposition that since the basic structure of the suit was not altered by the proposed amendment, the plaintiff was entitled to the relief as prayed for.
Mr.Abhrajit Mitra learned Advocate appearing on behalf of the defendant submitted that the proposed amendment was barred by the laws of limitation.
In any event since the trial of the suit commenced, the plaintiff was not entitled to relief as sought for, in terms of the fiRs.proviso of Order VI Rule 17 of the Code of Civil Procedure, 1908.
Elaborating on his contention that the amendment proposed was barred by the laws of limitation, Mr.Mitra submitted that the tenancy of the plaintiff was denied on August 23, 1997 when the city architect of the Kolkata Municipal Corporation submitted his report and on September 16, 1998 when the defendant filed the written statement and denied the tenancy of the plaintiff and at least on January 18, 2006 when another report filed on behalf of the Kolkata Municipal Corporation according to Mr.Mitra extinguished the tenancy.
According to him, the plaintiff could have asked for the amendments proposed while moving the interlocutory application which resulted in the order dated February 13, 2013.
The plaintiff did not do so.
Similar opportunity was available to the plaintiff in the appeal resulting in the order dated September 13, 2012.
The plaintiff did not do so again.
He relied on the order dated July 30, 2013 and submitted that the plaintiff would have a new cause of action if the Kolkata Municipal Corporation allowed the application for construction at the said premises.
Mr.Mitra relied on All India Reporter 2009 Supreme Court page 1433 (Vidyabai & ORS.versus Padmalatha & Anr.) as well as All India Reported 2007 Supreme Court page 806 (Ajendraprasadji N.
Pande & Anr.
versus Swami Keshavprakeshdasji N.
& Ors.) and submitted that in view of the fiRs.proviso of Order VI Rule 17 the amendments sought ought not be allowed.
He submitted that the fact alleged by the plaintiff in the proposed amendment was within the knowledge of the plaintiff prior to the commencement of trial.
According to him, the proposed amendment raised a jurisdictional issue in view of the fiRs.proviso of Order VI Rule 17 of the Code of Civil Procedure, 1908.
He submitted that the proposed amendment was barred by the laws of limitation.
He relied on All India Reported 1948 Privy Council page 100 (Bhagwanji Morarji Goculdas versus Alembic Chemical Works Company Limited & Ors.) in this context.
The plaintiff was seeking to introduce a new cause of action by the proposed amendments.
In reply Mr.Chakroborty for the plaintiff submitted that Sections 7 and Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002 specified that the amended Order VI Rule 17 would not be applicable to pleadings which were filed before the commencement of Section 16 of the Code of Civil Procedure (Amendment) Act, 1999 and Section 7 of the Code of Civil Procedure (Amendments) Act, 2002.
The present suit was of 1998 and, therefore, the amended Order VI Rule 17 had no role to play.
Consequently, according to him, the decisions cited on behalf of the defendant in this regard were of no relevance.
No doubt the application seeking amendment was filed subsequent to the commencement of trial.
In its unamended version the plaintiff in the instant suit sought to protect its tenancy.
For such purpose the plaintiff had prayed for decree of perpetual and mandatory injunction in the suit.
During the pendency of the suit and after the commencement of trial the Kolkata Municipal Corporation issued a notice for demolition.
A substantial portion of the building was demolished.
On the allegation that local hooligans engaged by the defendant were causing damage to the building the plaintiff applied for interim reliefs and obtained the order dated September 13, 2012.
Such order directed that the order of status quo passed earlier as well as the undertaking given on behalf of the defendant should be strictly complied with.
The order dated September 13, 2012 was affirmed by the Appeal Court with the modification recorded by the Appeal Court in its order dated February 13, 2013.
By the proposed amendment the plaintiff sought to introduce a subsequent event, that is, demolition of a substantial portion of the building by Kolkata Municipal Corporation.
The plaintiff also sought relief so as to ensure that the defendant makes over possession of 6,000 square feet on the second floor of any newly constructed building at the premises in question to the plaintiff and a decree of perpetual injunction restraining the defendant from transferring or alienating or letting out or encumbering such 6,000 square feet in favour of any person.
The amendment proposed by the plaintiff did not alter the nature and character of the suit.
The defendant did not contend in the couRs.of their elaborate argument that the nature and character of the suit stood altered by the proposed amendment.
The plaintiff as tenant of the defendant sought to protect its rights as tenant in respect of the tenancy in the instant suit.
Events during the pendency of the suit occurred which gave rise to justifiable apprehension in the mind of the plaintiff as to the intention of the defendant.
The act of demolition of a substantial portion of the building cannot be viewed lightly.
It has every potentiality of permitting the defendant to circumvent the due process of law by evicting the plaintiff and not providing the plaintiff space commensurate with the existing tenancy in the new building that may come up at the said premises.
In such context the amendments proposed were necessary to decide the real dispute between the parties.
At the same time the proposed amendments would prevent multiplicity of judicial proceedings.
In Bishnu Priya Pharmacy (Supra) it was held that the tenancy did not come to an end on demolition of a building by a statutory authority.
The case of Bishnu Priya Pharmacy (Supra) may assume larger relevance at the final hearing of the suit.
I did not find any force in the contention of Mr.Mitra that the proposed amendment was barred by the laws of limitation.
The incident of demolition claimed by the plaintiff was of October, 2012.
None of the reports of the Commissioner nor the written statement filed by the defendant bars the relief sought for by the plaintiff through the proposed amendment on the ground of limitation.
The two reports and the written statement were filed prior to the act of demolition which the plaintiff claimed to have occurred in October, 2012 and that too by the Kolkata Municipal Corporation.
Whether or not the tenancy stood extinguished on any of the dates claimed by the defendant in the written statement or as presently contended was an issue in the suit which required adjudication.
In absence of an adjudication against the plaintiff on such issue the right of the plaintiff to receive space in the new building commensurate with the existing tenancy was a continuing right.
Proviso to Order VI Rule 17 of the Code of Civil Procedure, 1908 as amended was not a complete bar to an amendment being allowed post commencement of trial.
The proviso was an additional restriction against allowing amendment when a Court was presented with an application for amendment post commencement of trial.
The proviso required, that in addition to the other parameters of amendment being satisfied, find that the amendment sought for could not be prayed for earlier by the party proposing the amendment in spite of their due diligence when such amendment application was made post commencement of trial.
Proviso to Order VI Rule 17 of the Code recognizes the right of a party to present an application for amendment of pleadings and qualifies such right in the manner indicated.
In the instant case, the argument on behalf of the plaintiff stood concluded on March 25, 2010.
The plaintiff was seeking to narrate incidents of October, 2012.
These incidents did not occur prior to conclusion of the argument of the plaintiff.
Moreover, as rightly pointed out by the Mr.Chakroborty the suit was of 1998 and the amended Order VI Rule 17 came into effect from July 1, 2002.
The amended Order VI Rule 17 did not apply to the present suit in view of Section 7 read with Section 16(2)(b) of the Code of Civil Procedure (Amendment) Act, 2002.
None of the Supreme Court decisions cited on behalf of the defendant helps it.
The Hon’ble Supreme Court in Vidyabai & ORS.(Supra) considered Ajendraprasadji N.
Pande & Anr.
(Supra).None of the aforesaid two decisions could be read to mean that no amendment post commencement of trial could be allowed at all.
In Vidyabai’s case (Supra) it was held that the primal duty of the Court was to decide whether the amendment proposed was necessary to decide the real dispute between the parties.
Such condition being fulfilled, amendment was to be allowed.
In the instant case there can be no doubt that the amendment sought for was necessary to decide the real dispute between the parties.
The proposed amendment narrated an event emerging subsequent to the conclusion of arguments by the plaintiff and most certainly after commencement of trial.
The plaintiff, therefore, could not have made an application for amendment prior to commencement of trial.
In the facts of Bhagwanji Morarji Goculdas (Supra).the Privy Council found that when leave to amendment was sought the same was barred by limitation.
The fact scenario of the instant case was different.
Relying on the ratio of Sampath Kumar (Supra) I direct that the amendment sought for be allowed.
Such amendment would curtail multiplicity of judicial proceedings.
The amendment sought for does not alter the basic structure of the suit.
For the aforesaid reasons the application is allowed.
There would be Orders in terms of prayers (a) and (b) of the application.
The department is directed to carry out the amendments within one week from the date of the order.
The plaintiff is directed to serve a copy of the reverified plaint on the defendant forthwith after the amendments are carried out.
The defendant will file additional written statement, if any, within one week thereafter.
The parties are at liberty to disclose additional documents, if required, within one week of the date fixed for filing of the additional written statement by the defendant.
Inspection forthwith the directions given are peremptory.
The parties are given liberty to mention the suit for listing immediately thereafter.
G.A.No.2581 of 2013 is disposed of accordingly.
There will be no order as to costs.
Certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
[DEBANGSU BASAK, J.].Later: Mr.D.N.
Sharma, Advocate appearing for the defendants prays for stay.
Such prayer is refused in view of the direction passed by the Hon’ble Appellate Court for expeditious disposal of the suit.
[DEBANGSU BASAK, J.].