Delta International Limited Vs Tor-Isteg Steel Corporation

A. Lala, J.@mdashThis application is made under very peculiar circumstances. Previously the suit under which this application is made along with a suit of the respondent/defendant being EOS No. 5 of 1991 were heard analogously by a bench of this Court (Ajoy Nath Ray, J.). Upon hearing both the suits on evidences and on arguments the Court felt to pass decrees as follows:

''The suit No. 824 of 1989 instituted by Delta is decreed in terms of claim (a); the plaintiff will also be entitled to mense profits at the rate of Rs. 12/-per sq.ft. per month on 1922 sq.ft. from 1.6.88 until delivery of vacant possession. The plaintiff will be entitled to assessed costs of Rs. 50,000/- taking the costs at the rate of Rs. 5.000/- per day of hearing and having the costs to 10 days since the two suits have been heard together for 20 days. The extraordinary suit of the Foundation being No. 5 of 1991 is dismissed with costs assessed on the same basis at Rs. 50,000/- which is to be paid to Delta International by Dr. Prosanta Kumar Mohanati out of the funds of the Foundation or by sale, including those at Delhi, Bombay and Bangalore the addresses of which are available from the records of this suit".

Claim (a) of the suit No. 824 of 1989 is as follows:

"(a) A decree directing the defendant to deliver up vacant and peaceful possession of the premises situated at No. 4, Government Place North (Seventh floor), Calcutta - 700 001 more specifically described in Schedule "A" to the plant".

Schedule "A" of the plaint under the decree in terms of prayer ''a'' is as follows:

Schedule of the Demised Premises

All that the demarcated portion of the seventh floor of the premises No. 4, Government Place North containing an area of the 1922 sq.ft. more or less and delineated in the plan hereby annexed and therein marked Block ''A'' and enclosed within Red Borders, the said premises being comprised in Holding No. 17 in block No. XXI of the South Division of the town of Calcutta and butted and bounded.

On the North By - Premises No. 4, Council House Street,
On the East by - Fancy lane,
On the South by - Government Place North,
and on the West - by Premises No. 3, Council House Street".

2. At the time of adducing evidence the concerned Lease Deed alongwith plan was exhibited. The area of occupation either in the suit of the plaintiff or in the suit of the defendant as per the schedule containing an area of 1922 sq.ft. fore or less.

3. Therefore, there is no dispute as to the area of occupation. There is no dispute as to the existence of the Lease Deed. There is also no dispute as regards existence of the plan being part and parcel of such lease deed. The Court proceeded on the strength of such documents and passed a decree. The decree was put for drawing up and completion of the same in the department of this High Court when for the first time the plaintiff/ petitioner found that the plan is not available with the plaint as per the description in the schedule.

4. However, from the original judgment and decree an appeal was preferred by the respondent/defendant herein within which the petitioner/ plaintiff filed an application for the purpose of obtaining an order in the nature of leave to include or annex such document with the plaint with a further leave to reverify the same. The Appeal Court became reluctant to pass the order because of its limitation in exercising jurisdication under Order 41 Rules 23 and 25 therein and remanded the matter to the trial judge. Since the trial judge was then sitting in a Division Bench, the matter was assigned before this bench. The present application is a formal one annexing all the documents as annexed previously before the Appeal Court.

5. Mr. Ranjan Deb, learned senior counsel appearing in support of the petitioner cited various judgments in support of his case. Firstly, he cited AIR 1922 249 (Privy Council) and contended that all rules of Courts are nothing but provisions intended to secure the proper administration of justice. He further cited K. Karuppanna Mudaliar Vs. Kuttianna Mudaliar, to establish that the predominant interest of the Court should be to render justice and allow amendments for such purposes in order to determine the real question of controversy between the parties. He also cited AIR 1972 P&H 295 (Karam Singh v. Charan Singh and another) to show that an amendment rectifying unitentional and a mere clerical error in mis-description in plaint could be allowed. He further cited 28 CWN 403 (Nandi Lal Agrani v. Jogendra Chandra Dutta) particularly para 410 left hand side to show that factually in such case misdescription of the property under the Schedule was there but even the Court allowed the amendment. From the cited judgment in 1984(1) CLJ 238 (S.N. Daga v. Smt. Anjali Gangopadhyay) I find this High Court held that the Courts or authorities must not be hypertechnical in the matter of allowing amendments and the amendments can be and should be allowed at any stage of the proceedings to have an effective determination of the lis and also to secure substantial Justice, in case by such process of amendment the nature and character of the concerned proceeding is not changed. Similarly, in Dondapati Narayan Reddy Vs. Duggirddey Venkatanarayana Reddy and Others, I find the Supreme Court held that the amendment should generally, be allowed unless it is shown that permitting the mandment would be unjust and results in prejudice against the opposite side which cannot be compensated by cost or would deprive him of a right which has accrued to him by the lapse of time.

6 . Mr. Arindam Sinha, learned counsel, appearing for the respondent/ defendant wanted to travel on a different track. According to him, there is no scope of making the application in the nature of Order 6 Rule 17 of the Code of Civil Procedure. No controversy is pending before the trial Court. In this case, provision of Order 7 Rule 18 of the CPC applies. I find Rule 18(1) prescribes that a document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

7. At the threshold it cannot appreciate the stand of Mr. Sinha because sub Rule 1 clearly gives answers where it will not be applicable. A document will be inadmissible document in evidence if not (a) produced at the time of presentation of plaint''s (b) not entered in the list of added or annexed to the plaint and not produced or entered accordingly; (c) if the leave is granted by the Court. In the instant case list added alongwith the plan not only produced at the time of hearing of the suit but was exhibited as a part of documentary evidence. Moreover when the case was made out before the Court of appeal and due to certain technicalities, instead of taking remanded the subject matter of issue by the trial Court, the case can not be said to be the closed case but an open case. In further the self same sub rule says Court cannot be precluded from granting leave. Thus, I feel the cited judgment on his behalf reported in AIR 1963 SC 92 (Venkata Reddy & Ors. v. Pethi Reddy) cannot be applicable in the factual matrix. I also take note of another cited judgment reported in Kewal Chand Mimani (d) by Lrs. Vs. S.K. Sen and Others, wherein it was held when the entire appeal was stand disposed of on delivery of the judgment there is no scope of reopening the issue on the basis of the liberty granted to mention the matter. The liberty to mention cannot be used as a means to achieve an advantage which is not otherwise available in law. I am sorry to say that neither the appeal was finally disposed of in the present case not the appeal Court disallowed the trial Court from proceeding with the issue. Therefore, one has to draw a line in between a open case and a closed case.

8. Moreover, decree can be passed on a partricular day but such decree, unless leave is granted , becomes effective upon drawing up, completion, perfection and filing of the same. Therefore, under such circumstances, when a document was called for purpose of drawing up a decree by the department of this Court it cannot be said that Court has no seisin over the matter to incorporate under a leave when such document is not foreign for consideration devolved into the decree. Even there is no further scope of appreciation of evidence but incorporation of the document as a piece of evidence for the purpose of drawing up a decree. It is further to be appreciated that unless the exigency is fulfilled by the grant of leave the decree will be paper decree being incapable for execution.

9 Therefore, the situation is unique. In such unique situation inherent power of the Court will govern the filed. Even in addition to power of the Court under Sections 152 and 153 in the miscellaneous provisions of the Code of Civil Procedure. There, I find that clerical or arithmetical mistakes in judgment, degrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on application of any of the parties. Similarly, in respect of general power of amendment I find that the Court may at any time and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. If both the provisions are analogously real purport will come out. Even the judgment, decrees or orders are there but the Court can not be debarred from making amendment for such purpose at any point of time. The popular concept is that a justice is not only be done but also seem to be done and if I accept such concept with the guidance of law, I cannot debur myself from granting appropriate order/s in this respect.

10. Thus, there should be an order that the plan which has already been exhibited in the suit be treated as part and parcel of the plaint and the department is entitled to proceed on the basis of such exhibit to draw up and complete the decree passed by this Court on 31st July, 1996. The amendment by way of insertion of plan in the plaint and drawing up will be made as expeditiously as possible but not beyond the period of 6 weeks from the date of passing the order. However, no order is passed as to costs.

Xeroxed certified copies of this judgment will be supplied to the parties within 7 days from the date of putting requisites for drawing up and completion of the order and certified copy of this judgment.

All parties are to act on the signed copy minute of the operative part of this judgment on the usual undertaking and subject to satisfaction of the Officer of the Court in respect as above.