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Second Appeal No. 766 of 1955, decided on 10th June, 1959.
O. VI r. 17‑Amendment can be allowed at appellate stage in a proper case.
There is no bar to allow an amendment in a proper case at the appellate stage. All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full power of amendment must be enjoyed and should always be liberally exercised. Though such power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases where such considerations are outweighed by special circumstances of the case. In such a case amendment can rightly be allowed even at appellate stage.
Ma Shwe Mya v. Maung Mo Hnaung I L R 48 Cal. 832 (P‑C) and Charan Das and others v. Amir Khan and others A I R 1921 P C 50 ref.
A. F. M. Mesbahuddin for Appellant.
B. N. Chowdhury for Respondents.
Johural Huq for A. K. M. Nurul Islam for the Deputy Registrar.
This appeal by defendant No. l arises out of a suit filed by the plaintiffs under section 87 (3) of the Bengal Tenancy Act for recovery of possession of the suit land.
2. Plaintiffs' case was as follows
They and their brother proforma defendant No. 10 (Ramendra Nath Maitra) held 8 annas share of the suit holding recorded in C. S. Khatian No. 17 of Mouza Shibrampur, P. S. Nachol, under defendant No. 1, the Mutwalli of Lakshimpur Wakf Estate, hereinafter referred to as the landlord. Proforma defendants Nos, 11 and 12 held the remaining 8 annas share of the said holding. The landlord filed a notice under section 87 of the Bengal Tenancy Act in the office of the Collector of Rajshahi to the effect that on‑ the tenant abandoning their holding, he re entered the holding in Ashar, 1358 B. S., and thereafter settled the land with proforma defendants Nos. 2‑9. The plaintiffs alleged that they did not abandon the holding, and hence the landlord was not entitled to re‑enter the land.
3. The landlord contested the suit. His contention was that the plaintiffs and the proforma defendant No. 10 left Pakistan, abandoning the disputed holding, and without making arrange ments for payment of rent, and hence after duly serving notice under section 87 of the Bengal Tenancy Act, he took possession of the tenant's land. He further contended that the suit was barred by special law of limitation.
4. After close of the evidence the plaintiffs applied for amendment of the date of dispossession as given in the plaint, but the learned Munsif rejected their prayer. The learned Munsif found (1) that the plaintiffs were dispossessed in June, 1951, and as the suit was filed on 15th August, 1953, i.e., after two years from the date the cause of action arose, it was barred by special law of limitation (Article 3, Schedule III of the Bengal Tenancy Act) ; and (2) that the plaintiffs had not abandoned the holding in suit. As the suit was, however, barred by limitation, he dismissed it. The plaintiffs preferred an appeal against the judgment and decree of the learned Munsif. The lower appellate Court allowed the plaintiffs to amend the date of dispossession as given in the plaint, and thereafter allowed the appeal, and decreed the suit.
5. Only two points have been raised in this appeal, namely, (1) Was the lower appellate Court justified in granting the prayer for amendment of the plaint and (2) is the suit barred by limitation
6. Mr. Mesbahuddin, the learned advocate for defendant No. 1 appellant, has contended that the learned Subordinate Judge should not have allowed the amendment of the plaint at such a late stage, and that, in any event, he should have granted the defendant time to adduce additional evidence in the case. In support of his contention he has relied on the following observa tions in the case of Ma Shwe Mya v. Maung Mo Huaung (I L R 48 Cal. 832 (P C)).
"The first question that arises is whether or not that leave to amend was properly given in accordance with the rules by which that leave must necessarily be regulated. All rules of Court are nothing but provisions intended to secure the proper administra tion of justice, and it is, therefore, essential that they should be made to serve and be subordinate to that purpose. So that full powers of amendment must be enjoyed, and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, not to change, by means of amendment, the subject- matter of the suits."
Now, it appears from the evidence that after the Nachol disturban ces which took place in 1950, the plaintiff No. 1 and his brother (proforma defendant No. 10) were convicted and sentenced, and that their family out of fear left Pakistan. They, therefore, stated in paragraphs 4 and 13 of the plaint
7. Paragraph 4 : "The plaintiffs have come to learn that the principal defendant No. 1 made a petition under section 87 of the B. T. Act in Case No. 202/VI of 1951‑52 before the Rajshahi Collectorate by making the plaintiffs and the proforma defendant No. 10 opposite parties falsely stating therein that the opposite parties had abandoned 22'721 acres of land out of the land described in the schedule below, and thereby he dispossessed the plaintiffs and the proforma defendant No. 10 therefrom, and after re‑entering in the month of Ashar, 1358 B. S., he settled the same with the defendants Nos. 2‑9."
8. Paragraph 13 : "The cause of action arose on and from the 1st Ashar, 1958 B. S., corresponding to 16th June, 1951, the date on which the defendant No. 1 re‑entered into the scheduled land, in Mouza Shihrampur within the jurisdiction of this Court."
9. Defendant No. 1 replied to the said paragraph 4 in paragraph 8 of his written statement as follows
"The statement made by the plaintiff in the fourth para. of the plaint (to the effect that) this defendant had submitted the petition under section 87 making false statements therein, is not correct. All the statements that were made by this defendant in the said petition are true."
10. He further stated in paragraph 14 of the written statement :
"On being requested by the Circle Officer, this defendant made settlement of the suit land separately to all these persons and other refugees numbering in all 26. And they are in possession of the same since the month of Aswin, 1359 B. S., the date of making such settlement. They are necessary parties to this suit."
11. In the petition to the District Magistrate, Rajshahi, which the landlord defendant No. 1 filed under section 87 of the Bengal Tenancy Act on 25th March, 1952, he stated as follows :
"Whereas the holding mentioned below and hitherto held by Bimalendra, Maitra, Samandra Maitra and Ramendra Maitra, residents of Ramchandrapur, P. S. Nawabganj, Distrit Rajshahi, has been abandoned by them without notice to me, and without arranging for the payment of the rent thereof, I hereby notify that I have treated the holding as abandoned, and that I am about to re‑enter upon it accordingly."
12. It is thus clear that the plaintiffs were not aware of the actual date when the landlord re‑entered the land, and hence they gave the date of dispossession as month of Ashar, 1358 B. S., corresponding to June, 1951, on the basis of the information received by them. The landlord clearly stated in his petition to the District Magistrate dated 25th March, 1952, that he was about to re‑enter the land. In paragraph 14 of his written statement he also said that he gave possession to those with whom he settled this land in Aswin, 1359 B. S. It was, therefore, very natural for the plaintiffs to apply for amendment of the date of disposses sion as given in the plaint. The learned Munsif, however, thought that it would strike at the root of the case, and hence he rejected the prayer for amendment. The learned Subordinate Judge while hearing the appeal, allowed the amendment prayed for. There is no bar to allow an amendment in a proper case at the appellate stage. It is well settled that the rules of procedure are meant to enable the Court to do justice between the parties, and not to stand in their way. This also finds support from the observations of the Privy Council quoted above, namely, "All rules of Court are nothing but provisions intended to secure the proper administration of justice, and it is, therefore, essential that they should he made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed, and should always be liberally exercised." In this connection reference may also be made to the following observations of the Privy Council in the case of Charan Das and others v. Amir Khan and others (AIR 1921 PC50).
"That there was full power to make the amendment cannot be disputed, and though such a power should not as a rule be exercised where its effect is to take away from a defendant a legal right which has accrued to him by lapse of time, yet there are cases (see for example, Mohammed Zahoor Ali Khan v. Mst. Thakurani Rott Koer (11 M I A 467), where such considerations are outweighed by the special circumstances of the case, and their Lordships are not prepared to differ from the Judicial Commissioner in thinking that the present case is one."
13. In my opinion, the special circumstances of this case bring it under the aforesaid observations of the Privy Council. Here by this amendment the plaintiffs merely wanted to adopt the date of dispossession as given in defendant No. 1's application to the Collector. By this amendment they were really not introducing any new matter. On the other hand they practically supported the defendant's statement. Hence, I think that the learned Subordinate Judge rightly allowed this amendment.
14. The next question is : Should the learned Judge have remanded the case to the trial Court to enable the defendant to file additional written statement or to adduce further evidence The learned Judge felt that there was no need for reply after the amendment of the plaint, because the plaintiffs were not really making out a case of which the defendant was not aware of. On the other hand, the plaintiffs wanted to rely on the date given by defendant No. 1 in his petition to the Collector, and in his written statement. The only course open to the defendant was to apply for amendment of the written statement, and to urge that the statement made by the plaintiffs in their petition before the Collector was incorrect. This was however, not done.
15. I, therefore, think that no order for remand was necessary in this case.
16. Now, I take up the second point, namely, is the suit barred by limitation Under Article 3 of Schedule III of the Bengal Tenancy Act a raiyat to recover possession of land against the landlord, ‑must bring tie suit within two years from the date of dispossession. The plaintiffs' case is that the landlord dis possessed them on 21st June, 1952. This is supported by the statement of defendant No. 1 in his petition to the Collector, The defendant, however, examined two witnesses to prove that the landlord re‑entered the land in 1358 B. S. The learned Advocate for the appellant has made a grievance that the evidence of these witnesses was not considered by the learned Subordinate Judge, The learned Judge while dealing with the question of possession says :
"The learned Munsif has discussed the evidence regarding the possession of the land, and he has found that the plaintiffs have not satisfactorily proved their possession after Ashar, 1358 B. S. I have gone through the evidence, and I am of the opinion that the learned Munsif has not correctly assessed the value of the oral evidence. It is not at all clear from the oral evidence adduced by the parties that the plaintiffs had no possession in the suit land after Ashar, 1358 B. S. This being the case, I am not prepared to believe that the landlord, defendant No.1, re‑entered upon the land in Ashar, 1358 B. S., and it becomes more improbable if we consider in this connection the very application, Exh 6 (a) filed by the defendant landlord to the Collector. The documents Exhs. 6, 6 (a) and 6 (b) were called for by the defendant from the office of the Collector, but he did not prove them before the Court presumably on the apprehension that they would go against him."
17. It is thus clear that in view of the defendant's statement in his petition to the Collector the learned Subordinate Judge was unable to rely on the evidence of his witnesses. Hence, in my opinion, on the evidence in this case, the learned Judge was justified in holding that the suit was not barred. No other point was urged in this appeal.
18. In the result, I affirm the judgment and the decree of the lower appellate Court, and dismiss this appeal with costs.
K. B. A.
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