RAM KRISHNA PRADHAN Vs. BHAGAWAT PRASAD
HIGH COURT OF SIKKIM
RAM KRISHNA PRADHAN
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Dinakaran, J. -
(1.) THE Revision Petitioner herein is the 10th defendant in the suit. THE plaintiff filed an application for framing of additional issues under Order XIV Rule 5 and the Revision Petitioner/10th defendant filed an application for amendment of the written statement with counter claim under Order VI Rule 17.
(2.) CONCEDED by the parties, evidence has already been led to substantiate their respective pleadings.
Under such circumstances, the 1st respondent/ plaintiff sought for permission under Order XIV Rule 5 CPC for framing the following additional issues:
"(i) Whether the Indian Easement Act, 1882 is enforced in the State of Sikkim? (ii) Whether the plaintiff is entitled to easementary right as claimed by him under the provision of the Indian Easement Act, 1882 or some other provisions of law?"
The learned Civil Judge, South Sikkim at Namchi allowed the application filed by the 1st respondent/ plaintiff's for framing additional issues, by his order dated 30.07.2010, but refused to permit the revision petitioner/ 10th defendant to amend the written statement which reads as hereunder: -
"9. That the amendment as proposed by the defendant no. 10 is furnished hereunder. After paragraph 26 of the written statement the following paragraphs are to be incorporated which shall read as follows: - "27. That as per the Lease Deed dated 16/2/2000 of the plaintiff, his total area of land after allotment of an additional site of 210 sq. ft. is 506 sq. ft. which is equivalent to 11' x 46'. He has raised his construction on 10' x 46' without keeping setback of 5' in the side and rear as contemplated in the law.
28. That even after `No Objection Certificate' from the defendant no. 10 for allotment of 3 feet land to the plaintiff; the plaintiff had to comply with the law of the land while constructing his building thereby keeping a setback of 5 feet in the immediate west of his land in between the buildings of the plaintiff and that of the defendant no. 10.
29. That as per Sale Deed dated 16/8/1981 the defendant no. 10 had purchased land measuring 35' x 40'. Thereafter, he was allotted some additional land in the year 1991 and on 16/4/2005 land measuring 4' x 50' was allotted to him by the Urban Development & Housing Department. While constructing his building the defendant no. 10 confined his construction at a frontage of 30 feet leaving a setback of 5 feet towards the site of the plaintiff. This 5' area was attached to the building of the defendant No. 10 towards the site of the plaintiff. In addition there arose another 2 feet gap attached to the 5 feet gap due to dismantling of common wooden structure. Thus, a total gap of 7 feet arose in between the site of plaintiff and that of defendant No. 10. Out of this gap of 7 feet as stated above 5 feet was the plaintiff's land while 2 feet arose due to dismantling the wooden structure.
30. That out of 7 feet of land the defendant no. 10 had given `No Objection Certificate' to the plaintiff for 3 feet. Out of this 3 feet, one feet was the land of the defendant no. 10 while the 2 feet was the land cropped up due to dismantling of wooden structure. This 3 feet land was allotted by the Government to the plaintiff vide allotment order dated 12/1/2000. Thus, the frontage of the plaintiff's land facing the road became 11 feet. Under the law the plaintiff has no right to raise his construction covering the entire frontage of ten feet as law provides that he should keep a setback of 5 feet from his own land towards the site of the defendant no. 10.
31. That vide order dated 16/4/2005 the defendant no. 10 was given allotment of the land having frontage of 4 feet attached to his construction towards the plaintiff's site and this 4 feet land so allotted to him was originally owned by himself. Thus, allotment of 4 feet was nothing but allotment of defendant's own land. It is stated that the defendant no. 10 had kept 5 feet setback towards plaintiff's site while constructing his building in the year 1991.
32. That the plaintiff cannot claim easementary right on the 4 feet land allotted to the defendant no. 10 in 2005 arising because of dismantling this compact wooden house and this gap was not in existence earlier and this gap is never recorded as a vacant space or a gully with the government record and it did not exist since long.
33. That as the plaintiff claims easementary right on this 4 feet land equally this defendant has also his right of easement on the 3 feet land which was allotted to the plaintiff by the government against no objection issued by the defendant no. 10. In addition this defendant has his easementary right on a total area of 5' (which includes 3' as above) because of the municipal law/otherwise. Whether the defendant no. 10 issued the N.O.C. for the 3 feet land or not, law provides that while constructing his building in the year 2005 the plaintiff had to keep a setback of 5 feet from his own land towards the site of the defendant no. 10. Unfortunately, the plaintiff has encroached upon an area of two feet out of three feet land and has raised his construction. As such it is required that the plaintiff's construction on the two feet of land plus another two feet land; in total 4' land towards the building of the defendant no. 10 shall be demolished and easementary right of the defendant no. 10 on that area be declared. The area to be demolished is shown by red lining in the rough sketch below.
34. That the plaintiff who is claiming easementary right over the 4 feet land allotted to the defendant no. 10 had to come to the court with clean hands and mind and equity warrants that. Unfortunately, he himself has not kept any vacant space except one feet towards the building of the defendant no. 10; has illegally raised construction without keeping any setback from his own land and is on the other hand claiming easementary right on the land of the defendant no. 10 is not only illegal but fraud on law.
35. That on the other hand the so called easementary right of the plaintiff has not matured on the four feet land allotted to the defendant no. 10.
36. That equally the defendant no.10's claim for easementary right on the three feet plus one feet area towards plaintiff's site which has been illegally encroached by the plaintiff by raising illegal construction has stood mature.
37. That on the other hand while constructing his building the plaintiff has not also kept a minimum setback of 10 feet from outer edge of road passing through infront of his own construction. As such it is also required that his illegal construction on the road without keeping any setback of 10 feet has to be demolished.
38. That in the suit, the defendant no.10 make the following prayer as counter claim which may be read as follows: - (i) A decree declaring that the defendant no.10 has acquired easementary right on the land/space in the extreme west side of the land of the plaintiff measuring 5 feet towards the building of the defendant no. 10 upon which the plaintiff has raised illegal construction and hence to clear the land measuring 5 feet by demolition of the plaintiff's illegal construction to the extent of 4 feet frontage thereby making the open vacant space of 5 feet in between the buildings of the plaintiff and that of the defendant no. 10
39. That the defendant no. 10 had been enjoying this 5 feet vacant space with air and light until the month of July of the year 2007 when the plaintiff inspite of objection from the defendant no. 10 raised illegal structure on the said area and closed the way of air and light.
40. That the valuation of the counter claim is fixed at Rs.1050/- being the valuation fixed by the plaintiff for his suit. The defendant no. 10 has deposited the said amount in the bank and original receipt is enclosed herewith.
41. That the building of the parties are located in the commercial zone at Namchi Bazar and the cause of action for the counter claim arose after 29.06.2010 when the plaintiff made a prayer for easementary right. Thereafter it is a continuous cause of action and is continuing within the jurisdiction of this Honourable Court."
(3.) ACCORDING to the learned Civil Judge, South Sikkim at Namchi, by his order dated 30.07.2010, the revision petitioner/10th defendant is only attempting to delay the disposal of the case as evidence has already been closed; the matter stood adjourned for arguments; and the date was already fixed for arguments on 20.08.2010. Learned Judge while refusing the amendment of written statement relied on a decision of the apex Court in Salem Advocate Bar Association vs. Union of India reported in (2005) 6 SCC 344 to the effect that the revision petitioner/ 10th defendant now has to show that despite diligence amendment could not be sought earlier after the trial began. The learned Civil Judge also observed that the revision petitioner/ 10th defendant was unable to explain why he had waited till all the witnesses were examined and cross-examined.
5.2 Placing reliance on the decision of the apex Court in Chander Kumar vs. Rajinder reported in (2008) SCC 117, the learned Civil Judge also observed that the Court must remember that the no injustice is to be occasioned to the 1st respondent/plaintiff by allowing amendment at the end of the trial, which would shake the edifice on which plaintiff has built his case. 5.3 The learned Civil Judge also relied on the ratio laid by the apex Court in Vidyabai vs. Premlatha reported in (2009)2 SCC 409 that the proviso to Order VI Rule 17 CPC puts an embargo on the jurisdiction of the Court's, as there was express bar for the proposed amendment. 5.4. Since the revision petitioner/ 10th defendant also claimed counter-claim for a decree, declaring easementary rights on the disputed portion of the land, the learned Civil Judge observed that in view of Rule 6-A(4) of Order VIII CPC, all the rules governing the plaint are also applicable to the counter- claims. Hence limitation for filing the counter-claims is also to be considered. Therefore, as per the ratio laid in Karma Denka Bhutia vs. Sarki Lhamu reported in AIR 2005 Sikkim 1 at page 2, the counter-claim is barred by limitation as the declaration for easementary rights is 3 years under Article 58 of the Limitation Act, 1963. Therefore, the same is not permissible in law by way of amendment.
Aggrieved by the said order of the learned Civil Judge, South Sikkim, refusing to amend the written statement, the revision petitioner/ 10th defendant has filed the present revision petition.;
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