Gobindo Ghosh v. Anjuna Resorts Pvt. Ltd.

I.P Mukerji, J.:—

INTRODUCTORY FACTS:

This is an application for amendment of the plaint, by the plaintiff. It is seriously contested by the defendant.

The plaintiff filed a suit on this cause of action. There is a partly two storied and partly three storied building measuring 215.491 sq. mtr. at 30 F, Mirza Galib Street, Kolkata - 16. The plaintiff was always in possession of this property. Earlier there was an old structure which was demolished. The building consists of forty rooms.

The position of the plaintiff is curious. He admits that he is not the owner of the land. Yet his case is that on 20th September, 2010, he entered into an agreement with the defendant for making over possession of thirty four rooms in the building. The consideration was Rs. 3.25 cores. The defendant had paid only Rs. 2,11,00,000/- and took possession of thirty rooms, on 12 October, 2010. The suit was filed by the plaintiff to recover the balance consideration together with interest, aggregating to Rs. 1,29,40,405/-.

It was said that he carried on business through a private limited company M/s. K.C Ghosh Forex Pvt. Ltd., in a portion of the said premises. He was being obstructed by the defendant from accessing that part of the property. He moved an interlocutory applicant, G.A No. 2925 of 2011 for reliefs in this direction. When the application was moved it was represented that the defendant had interfered with the possession of the plaintiff in those six rooms of which the plaintiff had not parted with possession.

On those facts, on 24 November, 2011, this Court had passed an order appointing a Special Officer to ascertain who was in possession of those six rooms. Initially the Special Officer could not carry out the order. It was reported to the Court that the defendant had not permitted him to carry out the order. It was represented by the Special Officer that there was “grave resistance” from the defendant in carrying out the order. The order of 24 November, 2011 provided for police assistance. With the help of the police the Special Officer arrived on the following day. He filed a report.

This Court recorded in a subsequent order made by it on 16 December, 2011 that according to the Special Officer the defendant was in possession of the six rooms. According to the learned Counsel for the plaintiff he had been dispossessed on 30 November 2011 after passing of the initial order.

This Court observed that the suit was on money claimed. The dispute about the possession of these rooms was beyond the domain of the suit. Such a claim could only be entertained by the Court if the scope of the suit was enlarged by an appropriate order. The parties understood that the claim regarding these rooms would only be entertained by the Court if the scope of the suit was enlarged by amendment. However, by the order dated 16 December, 2011 this Court directed the defendant to maintain status quo of the property. With such direction the application was disposed of on 31st January, 2012.

Hence, this application for amendment was taken out by the plaintiff.

AMENDMENT:

What are the amendments of the plaint that are sought by the plaintiff?

It is important to look at the proposed claims in the plaint, first. The plaintiff seeks a declaration that the six rooms are owned by him or belong to him or that he is entitled to their possession. A consequential order of injunction is sought restraining the defendant from interfering with this alleged right of the plaintiff.

Therefore, the initial claim of the plaintiff for a money decree and interest thereon is substituted by that claim together with a claim asserting right title and interest in these six rooms together with an injunction restraining the defendant from interfering with such right.

The cause of action for this claim is pleaded over twenty paragraphs which are proposed to be added. But very briefly, the case for amendment is that the plaintiff carries on business through a Company K.C Ghosh Forex Pvt. Ltd., in the premises. After the above order of injunction was passed by this Court, the defendant deprived the plaintiff of possession of three rooms of which he was in possession through the above company. In addition thereto, three more incomplete rooms have been taken possession of by the defendant after the order of injunction, immediately after 30 November, 2011. The plaintiff was always entitled to enjoyment of these rooms.

LAW:

Now the question is: Should the Court allow the amendments as prayed for?

It is very necessary to acquaint ourselves with the law on the subject, before arriving at a decision in this case. Order VI Rule 17 of the Code of Civil Procedure is very important. It is in the following terms:

“17. Amendment of pleadings.- The Court may at any stage of 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.”

It provides that at any stage a Court may allow an alteration of pleadings to be made if it is necessary for the purpose of determining “the real question in controversy between the parties”.

Mr. Utpal Bose, learned Advocate for the plaintiff cited the case of Shikharchand Jain v. Digamber Jain Praband Karini Sahha reported in AIR 1974 SC 1178. The question was about circumstances changing subsequent to filing of the suit and the necessity of effecting amendments to the pleadings. It was held by the Supreme Court that the pleaded original cause of action could be permitted to be changed by reason of change of circumstances to do complete justice between the parties. Taking note of this change of circumstances should be necessary to shorten litigation. The Supreme Court opined as follows in paragraph 11 and 12 of the report:

“11. …………………………… Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties. (See Rai Charan v. Biswanath Air 1915 Cal 103).

12. …………………………….It is said by Sri Chagla that as the appellant did not challenge the validity of the gift either in the first appellate court or in the High Court, he should not be allowed to challenge it now by an amendment of his written statement. We find it difficult to accept this submission of Sri Chagla. Even if the assertions made in the application for amendment of the written statement are found to be true, the appellant could not have non-suited the respondent during the lifetime of Smt. Rajrani. The gift was valid during her lifetime. Her death gives a fresh cause of action to the appellant who claims to be her next reversioner. It appears to us that it will be just and proper to allow the amendment sought for. It will shorten litigation.

Mr. Saha, learned Counsel for the defendant cited the case of Smt. Sakuntala Chakraborty v. Shiba Prosad Roy reported in AIR 1998 Cal 29 (Para 8); Kanailal Maity v. Kolkata Construction & Ors. reported in 2009 (1) CHN 37 (Para 8). These two decisions reiterated the established principles as to the circumstances when a Court could order an amendment to be made. The proposed amendment should not change the nature and character of the suit. It should not try to instill life to a dead claim.

Mr. Saha also cited the case of Revajeetu Builders and Developers v. Narayanaswamy and Sons reported in (2009) 10 SCC 84. The principles of law enunciated by the Supreme Court in that case are summarised in paragraph 63 of the report. I read paragraph 63:

“63. On critically analyzing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:

(1) whether the amendment sought is imperative for proper and effective adjudication of the case;

(2) whether the application for amendment is bona fide or mala fide;

(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;

(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;

(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and

(6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.

These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive.”

Mr. Saha submitted that the amendments, if allowed, would change the cause of action and hence, the character of the suit. The area which Mr. Saha concentrated upon was bar by law. He submitted that the plaintiff had admitted in this application that he was not the owner of the property but was in possession thereof. In the circumstances, the right of the plaintiff, at the highest, was that of a person forcibly dispossessed from a property. Such a person, if forcibly dispossessed had a right under Section 6 of the Specific Relief Act, 1963 to be put back immediately into possession. A suit under that section was also contemplated by the said Act. The proposed claim of the plaintiff could not have been made under Section 6 of the Specific Relief Act, 1963 because the instant suit was not under the Act. Therefore, he could not urge that claim. Next he submitted that the defendant had a superior title to the property, of ownership, than the plaintiff, who has admittedly only possessory right. If the person having an inferior title was ousted by a person with superior title he could not complain of dispossession. He relied on two Supreme Court decisions Nair Service Society Ltd. v. K.C Alexander reported in AIR 1968 SC 1165 and Somnath Berman v. Dr. S.P Raju reported in AIR 1970 SC 846.

I am afraid, the principles enshrined in that case support the plaintiff.

Hidayatullah J, said in the case of Nair Service Society Ltd. v. K.C Alexander reported in AIR 1968 SC 1165:

“13. We agree as to a part of the reasoning but with respect we cannot subscribe to the view that after the period of 6 months is over a suit based on prior possession alone, is not possible. Section 8 of the Specific Relief Act does not limit the kinds of suit but only lays down that the procedure laid down by the Code of Civil Procedure must be followed. This is very different from saying that a suit based on possession alone is incompetent after the expiry of 6 months. Under Section 9 of the Code of Civil Procedure itself all suits of a civil nature are triable excepting suits of which their cognizance is either expressly or impliedly barred. No prohibition expressly barring a suit based on possession alone has been brought to our notice, hence the added attempt to show an implied prohibition by reason of Section 8 (Section 7 or the Travancore Act) of the Specific Relief Act ….”

14. The Limitation Act, before its recent amendment provided a period of twelve years as limitation to recover possession of immovable property when the plaintiff while in possession of the property was dispossessed or had discontinued possession and the period was calculated from the date of dispossession of discontinuance. Mr. Nambiar argues that there cannot be two periods of limitation, namely 6 months and 12 years for suits based on possession alone and that the longer period of limitation requires proof of title by the plaintiff. We do not agree. No doubt there are a few old cases in which this view was expressed but they have since been either overruled or dissented from. The uniform view of the courts is that if Section 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of the title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under Section 9 of the Specific Relief Act but that does not bar a suit on prior possession within 12 years and title need not be proved unless that defendant can prove one. ……………..”

Hegde J. opined in the case of Somnath Berman v. Dr. S.P Raju reported in AIR 1970 SC 846:

“9. ……………………………. In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff's lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner.”

Furthermore, no person, in our country, has the right to dispossess any person, even a trespasser, without taking recourse to the due process of law.

R.C Lahoti J pronounced the following dictum of the Supreme Court in Ramesh Chand Ardawatiya v. Anil Panjwani reported in AIR 2003 SC 2508:

“34. ………………………………… The law discourages people from taking the law into their own hands howsoever good and sound their title may be. Possession is nine points in law and law respects peaceful and settled possession. Salmond states in Jurisprudence (12 Edition)-

“These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contrast the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.” (P. 59)

“In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional of temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it any person whatever, simply on the ground of his possession. Even the true owner, who takes its own may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law. Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary.

CONCLUSION:

Therefore, the plaintiff in alleged possession of the property, before alleged dispossession is in a far superior position than that of a trespasser. In a regular suit, based on possessory right alone, on proof of dispossession, he would be entitled, as an interim measure, to possession. The question of title would come later, at the trial of the suit. He will fail, according to the above authorities, against the true owner. But, here, the ownership of the six rooms is disputed. So, the plaintiff can maintain the suit.

The real situation is that if it is held by the Court that this is an entirely different cause of action, the plaintiff would have to file another suit, as no law in the land can prevent the plaintiff from filing a suit making the proposed claim.

In my judgment the plaintiff has an existing claim against the defendant. He has additionally other claims against the same defendant which he proposes to bring on record by way of an amendment. The plaintiff was perfectly entitled to join the existing cause of action along with the proposed cause of action at the time of filing of the original suit. More so because the property over which the claim is made is also within the jurisdiction of this Court. (See Order II rule 3 of the Code of Civil Procedure and Clause 12 of the Letters Patent)

Some importance has to be given to this allegation that the present cause of action did not arise at the time of filing of the suit. The cause of action allegedly arose after the above interim order was passed by this Court in the suit. It is well known that the Court at the time of consideration of an amendment application does not go into merits of the claim. Therefore, the explanation of the plaintiff has to be accepted, at this stage. The Court is not permitted to go into the question of possession, in an application for amendment. In my opinion the Court is also entitled to take notice of this alleged subsequent development according to the ratio laid down in the case of Shikharchand Jain v. Digamber Jain Praband Karini Sahha reported in AIR 1974 SC 1178.

Furthermore, in my opinion the application for amendment is bona fide and would not cause prejudice to the defendant. In fact refusing the amendment would cause injustice to the plaintiff and lead to multiple litigation, according to the dicta of the Supreme Court in the case of Revajeetu Builders And Developers v. Narayanaswamy And Sons reported in (2009) 10 SCC 84.

I am also of the view that the proposed amendments if allowed would effectively resolve the real disputes between the parties, as provided in Order VI Rule 17 of the Code of Civil Procedure.

For all these reasons this application for amendment is allowed. I allow this application by passing orders in terms of prayers (a), (b) and (d) of the Master's Summons. The Registry is directed to carry out the above amendments within a period of four weeks from the date of communication of this order.

Urgent certified photocopy of this judgment and decree, if applied for, to be provided upon the usual undertaking.

LATER:

Mr. Saha, for the defendant prays for stay of operation of this judgment and order. Considering the issues involved, this order will be deemed not to have been communicated to the Registry of this Court for a period of three weeks from date.