1. Heard Mr. S D Sarma, learned counsel for the petitioner. Also heard Ms. R Choudhury, learned counsel for private respondent and Mr. G.
Bordoloi, learned Govt. Advocate for the respondent Nos. 27, 28 and 29.
2. The present petitioner corporation preferred T.S. No. 140/2012 in the court of learned Munsiff No. 1, Karimganj against the present respondent
Nos. 1 to 29 seeking following releifs:
“a) For declaration of right, interest and possession of the plaintiff vest-in by His Excellency the Hon’ble Governor of Assam in
respect of the suit Fishery described in Schedule below.
b) For confirmation and possession of the plaintiff corporation in respect of the suit Fishery through their lessee time to time.
c) For declaration that the principal defendants no way are owner of the suit Fishery in any manner whatsoever.
d) For declaration that the judgment and decree of T.S. No. 56 of 1971 of the Ld. Court of Asstt. District Judge, Cashar, Silchar and
judgment & decree in T.A. No. 2 of 1985 of the court of Ld. District Judge, Karimganj and the judgment & Decree of T.S. No. 213 of 2004
of the Ld. Court of Munsiff No. 1, Karimganj and the order of Hon’ble High Court in Civil Rule No. 3454/1997 and order of
Hon’ble Guwahati High Court vide dated 11.10.2007 in WP(C) No. 8835/2005, 8782/2005 & 3896/2001 are not binding upon the
plaintiff corporation in respect of the suit beel.
e) For declaration that principal defendants no way can execute T.EX. case No. 15 of 2005 for taking possession of the suit beel by
dispossessing the plaintiff corporation there from.
f) For permanent injunction restraining the principal defendants from interfering in peacefull use, occupation and enjoyment of the suit
fishery by the plaintiff corporation.
g) For cost of the suit.
h) For any other or further relief the Ld. Court deem fit and proper.
And for which your plaintiff shall ever pray.â€
3. The respondents more specifically respondent Nos. 1 to 26 filed their joint written statements and the respondent Nos. 27 to 29 filed their separate
written statements. The case of the plaintiff/ petitioner is that the land shown in the schedule of the plaint was by way of notification of the Govt. of
Assam handed over to the petitioner corporation in order to manage the fisheries covered by the schedule land. The said handing over of possession
by the Govt. of Assam was opposed by private respondent Nos. 1 to 26 on the ground that on earlier occasion several rounds of litigation were there
between the private respondents and the government and in T.S. No. 56/1971 in the court of the then Asstt. District Judge, Cachar, and T.S. No.
213/2004 in the court of Munsiff No. 1, Karimganj their right, title and interest were declared in respect of the same schedule land. The said decree in
their favour, was put into execution following which individual patta were issued in their respective names. Necessary issues were framed by the
court of Munsiff No. 1, Karimganj, in T.S. No. 140/2012. The plaintiff/ petitioner led its evidence and during the process of cross-examination of the
respondents/ defendants, the DW1 in his cross-examination deposed that part of the land described in the schedule of the plaint were sold to various
people by way of registered sale deeds during the pendency of the suit. The cross-examination of the defendant’s side was completed and the suit
was fixed for argument.
4. Terming the said act of sale of the portion of the suit land as subsequent events, the plaintiff/ petitioner filed an application under order 6 Rule 17 of
the CPC for bringing on record the subsequent facts along with an application under order 1 Rule 10 of the CPC to implead the subsequent purchasers
as defendants being necessary parties. The said petition was registered as Misc case No. 36/2016 in the said court. The defendants/ respondents Nos.
1 to 25 filed their joint written objection against the said amendment application raising the plea that the suit was fixed for argument and amendment at
that stage cannot be allowed. In addition to that, another plea was raised that if at all there were any sale transactions the same are covered by the
principle of ‘lis pendens’ as stipulated in Section 52 of the T.P. Act. On the basis of the said objection the learned court below vide impugned
order dated 12.07.2016 passed in Misc. Case No. 36/2015 dismissed the said petition following which, being aggrieved, this revision petition is filed by
the petitioner.
5. It is the contention of Mr. Sarma that admittedly there were sale transactions during the pendency of the suit and the same are subsequent
developments after filing the suit and immediately the said subsequent fact came to the knowledge of the petitioner, the application under order 6 Rule
17 of the CPC was filed along with an application under Order 1 Rule 10 of the CPC to implead the subsequent purchasers in the suit as defendants.
The learned court below merely on the ground that if the amendment was allowed there would be delay in disposal of the suit coupled with the finding
that sale transaction was subject to principle of lis pendens rejected the petitions. It is submitted that the sale deeds are required to be cancelled in
order to remove the cloud created over the title of the petitioner and as such the learned court below failed to exercise its jurisdiction as required under
Order 6 Rule 17 of the CPC inasmuch as there was no dearth of due diligence on the part of the petitioner. Accordingly, Mr. Sarma submits for
setting aside the said impugned order.
6. Ms. Choudhury on the other hand submits that admittedly the sale transactions were carried out during the pendency of the suit. In such situation
the sale transactions are subject to the principle of lis pendens and if a decree is passed in favour of the petitioner, the validity of the sale deeds would
become invalid and as such no further decree is required to be passed by the court below and for that purpose the amendment is not at all required.
Mr. G. Bordoloi, the Govt. Advocate supports the stand of Mr. Sarma.
7. I have given due consideration to the submissions of the learned counsel. There is no dispute that the sale transactions were carried out during the
pendency of the suit. A duty is cast on the plaintiff/ petitioner to bring to the notice of the trial court the subsequent event in order to get the proper
relief in the suit. Such subsequent event may be one purely of law or founded on facts. In the present case in hand the subsequent developments are
founded on facts that during the pendency of the suit the defendants/ respondents carried out the sale transactions in favour of the subsequent
purchasers. Such facts are required to be pleaded in order to mould the relief already prayed for in the plaint by the court.
8. Ms. Choudhury pointed out that there is no requirement of the amendment inasmuch as the principle of lis pendens covers the subsequent sale
transactions. The said submission cannot be accepted inasmuch as if the fact of sale transactions and the sale deeds are not produced the same
cannot be held that law will take its own course and mere judicial notice on the part of the court will be sufficient to mould the relief. It is the general
principle that rights of the parties stand crystallised on the date of the institution of the suit but even then the court cannot blink its eyes if a party due
diligently brings the subsequent fact on record and the court must accept the said subsequent event after giving due notice to the person who may
likely to be affected by the introduction of the said subsequent facts inf the pleading.
9. In Pasupuleti Venkateswarlu -Vs- Motor & General Traders reported in AIR 1975 SC 1409 the Hon’ble Supreme Court while discussing the
processual jurisprudence vis-a-vis the principles of consideration of subsequent events after filing the suit held as follows:-
“4……………………It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a
suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial
process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is
brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy.
Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial
justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this
power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special
circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this
equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also
legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognisance of events and
developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously
obeyed………â€
10. The learned court below failed to consider the aforesaid aspect of the matter and failed to consider that for application of the principle of lis
pendens the fact like the act of completion of sale transaction during the pendency of the suit is to be proved by the plaintiff/ petitioner.
11. The learned court below further failed to take into consideration another vital aspect of the matter inasmuch as Order 2 Rule 2 of the CPC bars a
litigant to seek for a relief which he could have pleaded in an earlier suit when there arose cause of action during the pendency of the earlier suit until
and unless leave is granted by the court to omit the said relief in the earlier suit. In the present case in hand the cause of action for seeking
cancellation of sale deeds after declaration that the sale transactions are invalid had arisen during the pendency of the present suit and if the plaintiff
failed to seek for the relief which arose out of cause of action during the pendency of the suit shall not be allowed to seek for the relief in a
subsequent suit. There is no dearth of due diligence on the part of the petitioner in order to bring the subsequent development by way of the
amendment application to the notice of the court. The court below failed to give its finding in that regard which is an important criteria for granting an
order favouring amendment of the plaint. On the other hand subsequent purchasers are necessary parties to the suit inasmuch as even if they are not
party / parties in the suit if the decree goes against them they have a right to prefer an appeal and they are competent party U/s 146 of the CPC. The
petitioner rightly filed an application under Order 1 Rule 10 of the CPC to implead the subsequent purchasers as defendants in the suit. The said
aspect of the matter was not taken into consideration by the court below and if new parties are impleaded in a suit the plaint is required to be
amended.
12. In the present case in hand admittedly the suit is fixed at argument stage. But equally important is the relief of cancellation of the sale deeds. In
the event the amendment is allowed no doubt a delay in disposal of the suit will take place. But after allowing the subsequent purchasers to be
impleaded as necessary parties and the amendment by giving chance for filing written statement and framing a specific issue, the suit can be decided
after allowing the parties to adduce evidence confining to the issue framed and in that case none of the parties will be prejudiced if the amendment is
allowed.
13. Considering the aforesaid discussions, I am of the opinion that the learned court below failed to exercise its jurisdiction and wrongly disallowed the
amendment application alongwith the application under Order 1 Rule 10 of the CPC and as such I accordingly set aside the impugned order with a
direction to the court below to pass appropriate order while disposing of the amendment application along with the petition filed under Order 1 Rule 10
of the CPC afresh keeping in view the observations made hereinabove.
14. The parties in this revision petition more specifically respondent Nos. 1 to 27 shall appear before the learned court below on 05.08.2019
whereafter necessary order will be passed by the court below keeping in view that the matter is pending since year 2012 and shall make an endeavour
to dispose of the suit at the earliest possible time.
15. Accordingly, this revision petition is allowed. No costs. Interim order passed earlier stands vacate.
